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JUDGMENT Varghese Kalliath, J.
1. This is a public interest litigation. Petitioner is a society registered under the Travancore-Cochin Charitable, Literary and Scientific Societies Act. It claims that it is involved in legal research legal literacy and espousing public interest causes before Courts.
2. In this petition the petitioner wants to spearhead and underscore the high potency danger involved in allowing to continue the operation by the first respondent a 10,000 tonne Ammonia Storage Tank in Willingdon Islandin Port Area.
3. The first respondent the Fertilizers and Chemicals Travancore Ltd., Udyogamandal is a public sector undertaking. It is engaged in the production of fertilisers. O. 27% of the shares in the Company is held by the public, the balance being held by the Government of India, the Government of Kerala, the Government of Tamil Nadu and the Government of Andhra Pradesh. Its manufacturing units for production of chemical fertilisers are Cochin Division at Ambalamedu and Udyogamandal Division at Eloor.
4. From the counter affidavit of the first respondent it is seen that the company is producing 4.24% of the total fertiliser production of the country. It is stated in the counter affidavit that it has a capital investment of Rs. 520 crores and a staff strength of 8527.
5. Ammonia is a chemical and is used as the raw material for the production of fertilisers like Urea, NP 20 : 20 : 0, DAP 18 : 46 : 0, Ammonium Sulphate, Ammonium Chloride and petro chemicals like caprolactam.
6. The Ammonia stored in the storage tank is imported in special refrigerated ships and is pumped from the ships to the refrigerated storage tank at atmospheric pressure. Since the first respondent required Ammonia for the purpose of production of fertilisers and caprolactam, it is importing Ammonia after obtaining the required governmental sanction. The tank, which was designed in March, 1973, was commissioned in August, 1976 to receive liquid Ammonia from ship. The Ammonia stored in this tank is transferred into rail tank wagons and transported to first respondent's Cochin Division, where it is stored in a 5000 tonne capacity Ammonia storage tank before being pumped to the consuming plants. Part of the Ammonia that is stored in the tank is transported Udyogamandal through barges specially made for the purpose of refrigeration.
7. The important characteristic of the storage tank is that the pressure inside is always maintained at near atmospheric pressure by means of refrigeration systems. This type of storage tank is claimed to be safer than the high pressure storage (pressure 10 to 15 kg/cm ) and the hortonspheres which are the two types of storages used for storing Ammonia. The first respondent claims that in the atmospheric storage category itself, the design that gives maximum safety is the double integrity type which incorporates two walls, both of which are designed for full strength. It is done to eliminate the possibility of any Ammonia leak from the tank, We shall be discussing more details of the construction of the foundation and the manufacture of the tank.
HISTORY OF THE FERTILIZER PLANT AND THE STPRAGE FACILITIES OF AMMONIA :
8. Now we turn to sketch a synoptic history of the fertilizer plant of the first respondent. The first fertilizer plant of the first respondent was commissioned in 1946 in Udyogamandal and this was operated on wood gasification. For the purpose of this, Ammonia synthesis gas was obtained from wood and this was converted into Ammonia for manufacture of fertilizers. Thereafter, Ammonia was also produced by electrolysis of water and all the Ammonia thus produced was used in the course of manufacture of fertilizers. In 1962, a new oil gasification plant was commissioned, in Udyogamandal as a substitute for the wood gasification plant. Here also the process resulted in the manu-
facture of Ammonia which was stored in tanks. By 1965 the capacity of this plant was about 220 M. T. per day. An additional plant for the manufacture of Ammonia with a capacity of 120 TPD based on steam reforming of naphtha was commissioned in Udyogamandal in 1971. Thus by 1971, the total capacity of the Ammonia plants in Udyogamandal was 340 TPD and this capacity continues even today with related storage facilities.
9. The company has set up a plant at Cochin Division in Ambalamedu for the manufacture of Ammonia using naphtha as feed-stock by steam reforming process with a capacity of 600 TPD and this was commissioned in 1973. Storage facilities are provided at Cochin Division. It is for the second phase of Cochin Division that imported Ammonia is used. It necessitated the setting up of the 10,000 tonne storage tank in Willingdon Island.
900 TPD (TONNE PER DAY) AMMONIA PLANT PROJECT :
10. The first respondent tells us that on account of the setting up of the caprolactam plant in Udyogamandal, the proposal for putting up a new Ammonia plant at Udyogamandal was under consideration and this was not only to substitute the existing facilities at Udyogamandal but also to provide additional Ammonia required in Udyogamandal particularly for the caprolactam plant as well as to provide Ammonia for the second phase of Cochin Division at Ambalamedu in place of imported Ammonia.
11. The first respondent in its counter in C. M. P. No. 18138 of 1991, which has been reiterated in further affidavits, has stated that the first respondent has got a project for the construction and commissioning of a 900 TPD Ammonia plant which requires foreign collaboration and foreign exchange. In view of the fact that 900 TPD Ammonia plant is under consideration, the Government of India advised the first respondent to withdraw the proposal for re-location of the Ammonia storage tank at Willingdon Island, by its letter No. 119/3/85/1/89/938 dated 10th January, 1989.
12. We may now refer to the additional affidavit filed by the first respondent on 27th October, 1993. In this affidavit, the first respondent has stated that once the 900 TPD Ammonia plant is commissioned and stabilises its operation at 95% capacity utilisation, it should be possible to progressively reduce dependence on imported Ammonia and it is proposed to utilise the existing Ammonia tank sparingly and for limited use which, in any case, will not pose any hazard at all to the environment, according to technical experts. In this affidavit, it is stated that for reasons which were beyond the control of the first respondent considerable time was taken for getting the final approval of the Government of India for installing the 900 TPD Ammonia plant. Though PIB was obtained for the proposed plant in August, 1991, the final approval of the Government of India was obtained only in May, 1993 from the cabinet committee of the economic affairs. After stating the different facets of the implementation of the project and the time that would be taken for installing the Ammonia plant, the first respondent submits that commercial production is expected by July, 1998. Further, it is stated that the first respondent is taking all that is required for maintaining the safety of the existing tank.
13. The 5th respondent in the Original Petition is Ministry of Environment. The 5th respondent in its counter affidavit dated 24th August, 1989, has stated that, FACT has submitted a proposal to the Department of Fertilizer, Ministry of Agriculture, Government of India for starting a 900 TPD Ammonia plant in its Udyogamandal factory to augment its in house production of Ammonia. Once this is installed, FACT will not be requiring the imported Ammonia and its storage as Willingdon Island could be totally discontinued. If the tank has to be shifted from Willingdon Island to a new site, it has been estimated that it would at least require two to three years and if 900 TDP units are to be established at Udyogamandal, it would require 4-5 years.
CONSTRUCTION OF THE 10,000 TONNE AMMONIA TANK :
14. The tank is designed by M/s. Freidrich UHDE GmbH; according to the first respondent, a world leader in the field of manufacture of tanks for storing liquid Ammonia. It has been constructed as per API-620 Appendix which is the code internationally followed for the purpose. M/s. Lloyd's Register Industrial Services (Inspection authority) was the agency to monitor the design and construction and to ensure the quality of workmanship right from material testing to the erection of the tank and appurtenances and to certify the installation. The first respondent states that the Port Trust and Navy have given their clearance. From the exhibit produced along with the affidavit, Exhibit R 1(f), the Port Trust has informed the first respondent that the Navy has cleared the proposal for construction of the tank. Exhibit R 1(f) is the clearance for construction of storage facilities issued by the Captain, Chief Staff Officer for Flag Officer Commanding, Southern Naval Area, Cochin. In the letter it is written that the Headquarters have no objection to the construction of the 65 feet Ammonia tank and the 100 feet flare stack as proposed in the letter of the first respondent E/1524/70 dated 17th November, 1971. Of course, the Chief Staff Officer wanted to ensure that both the obstructions are marked by alround red obstruction lights at the highest point. To facilitate easy recognition by day the flare stack should be conspicuously marked red and white horizontal bands of uniform width of not more than 20 feet. The bands on the extremities of the stack should be of red colour.
PETITIONER'S COMPLAINT :
15. Petitioner wants to highlight the massive environmental pollution caused by the existence of the tank; and also the devastating catastrophe of exterminating the entire human race bion and living beings in Willing-don Island and the City of Cochin and nearby places in the event of a major leak of the Ammonia Tank. He compares it to the morbid tragedy that ensued by the gas leak of the carbide corporations plant in Bhopal. He has stated that "the first respondent, like the Union Carbide Corporation, today routinely poisons the environment and threatens --through its 10,000 tonne Ammonia Storage Tank on Willingdon Island -- to turn Cochin and its surrounding regions into one horrifying graveyard". The petitioner points out certain incidents of leak of Ammonia lank, which caused serious injuries to persons. The petitioner has stated that a member of the expert committee, the Dy. District Medical Officer, gave a detailed report on the hazards of Ammonia and its effects of Cochin City if the Ammonia storage tank on Willingdon Island leaks. Based on the above facts, he recommended the removal of the Ammonia storage tank with immediate effect. The petitioner has pointed out that a copy of the expert committee's report is available with the sixth respondent.
16. In the petition, he has stated about the accident occurred in the Soviet Union and Pakistan. He has also stated that an even more recent accident occurred in Pakistan when an ice plant developed a leak, injuring 1500 persons. He submits that if a leak could develop in an ice plant, which contains relatively a little Ammonia, it is easy to imagine the magnitude of the accident that can occur from a massive storage tank that loads and unloads hundreds of tonnes of Ammonia every day. He has produced along with the petition a photostat copy of the news item appeared on 24th May, 1989 in the Times of India, as Ext. P1. He has also produced photostat copy of the news item which appeared on 30th May, 1989 in the Mathru-bhumi as Exhibit P2, wherein mention is made about the devastating threat caused by the 10000 tonne Ammonia Storage Tank situated in a very strategic and most undesirable location and about the representation made by the Environmental Co-ordination Council headed by a Chairman, who is a retired Judge of this Court. Petitioner has produced Ext. P3, a letter written by Imon Ghosh, a public interested citizen. Along with Exhibit P 3, he has produced certain reports, marked as Exts. P 3(a), (b), (c), (d) and (e). He has also produced a photostat copy of a poem about the Ammonia Storage Tank published in a media, the Malabar Herald, dated 20th May, 1989, marked as Ext. P 4. Petitioner has produced the reply to the representation dated 20th March, 1989 by the third respondent -- Rear Admiral, Southern Naval Command, marked as Ext. P5. In Exhibit P 5, the Rear Admiral PP Sivamani AVSM, NM, Chief of Staff has stated that the FACT authorities are fully aware of the potential hazard posed by their Ammonia tank within the precincts of the Cochin Port Trust. They have endeavoured to keep their tanks in good shape. The FACT management has not hesitated to call for foreign advice when needed. In fact in March, 1988, M/s. Cremer and Warner of UK were contracted to study the working of the Ammonia Tank specialy from the safety point of view. The consultants have given a clean bill of health to the safety measures instituted by FACT and have also commented favourably on the state of training of the concerned personnel. In the letter it is stated that action is in hand to prepare a contingency plan, and that they also intend taking up the issue with the State Government. It seems that Imon Ghosh has written further to Vice-Admiral R. P. Sawhney, PVSM, Flag Officer Commanding-in-Chief, Southern Naval Command, Willingdon Island, on May 1st, 1989. True copy of the letter is Ext. P 6.
17. We will be adverting to further details given in the Original Petition as well as the large volume of documents, statements and affidavits produced in this case at the appropriate occasion.
18. Petitioner wanted a direction from this Court directing the removal of Ammonia storage tank forthwith from Willingdon Island. Further he wanted a direction to the 4th respondent to discharge their statutory obligations to keep the air clean in Cochin under Section 17 of the Air (Pollution and Control) Act of 1981, and to direct the first and second respondents not to toad or unload Ammonia in the storage tank on Willingdon Island, or to transport any Ammonia through populated areas by any means of transport. Petitioner also wanted a direction from this Court to produce the report of the expert committee constituted by the sixth respon-
dent regarding the hazards associated with the first respondent's Ammonia Storage Tank on Willingdon Island under the Chairmanship of the Deputy Conservator of Cochin Port Trust, and also a direction to the other respondents to produce all the records relating to all the Ammonia storage tanks of the first respondent.
19. This Court issued notice on this petition on 5-6-1989. This Court passed no interim order for stopping the loading or unloading of Ammonia. This Court passed a series of interim orders for facilitating a proper investigation of the issues involved in this litigation. We may refer to those interim orders, wherever we feel it necessary, when we discuss the different issues involved in this case.
THE STAND OF THE PORT TRUST AS REVEALED FROM THE COUNTER :
20. The 2nd respondent, the Port Trust has filed a counter affidavit in this case. In the counter, it is stated that at the instance of the first respondent Company and the District Collector, Ernakulam, the sixth respondent herein, the then Deputy Conservator of the Cochin Port Trust constituted a task force in 1985 to prepare a contingency plan. The task force recommended resiling of the Ammonia Storage Tank in Witlingdon Island. It is revealed from the counter affidavit that the Chairman of the Cochin Port Trust, the second respondent, wrote a letter dated 8th March, 1989 to the Secretary to the Government of India, Ministry of Surface Transport pointing out the report of the task force, public sentiments against the continued use of the Ammonia Storage Tank and suggesting the resiling of the Ammonia Storage Tank. In Exhibit R 2(a), the Chairman of the Port Trust, Shri G. Krishnan, has stated that a Committee constituted by the District Collector, Ernakulam with representatives from the Cochin Port Trust, Navy, Southern Railway, Civil Aviation, Department of Police, Fire Force, Health Department, NEERI and FACT had submitted itsd report on the Ammonia Storage Tank at Willingdon Island on 15th November, 1985 and that the Committee confirmed that the location of the tank at Willingdon Island is such that they could not formulate a contingency plan. In this letter, it is stated that the tank is situated close to the berth where gas containers discharge parcels of 6000 to 7000 tonnes liquid Ammonia into the Tank. Further it is stated that the potential threat to the security of large population on account of the Ammonia Tank is so grave that it is absolutely essential to shift the tank to some other location without any further loss of time. The FACT should at once decommission their present tank, where storage of Ammonia will be limited to less than 500 tonnes at any given time. The letter also says that very strong public resentment is there against the continued use of the Ammonia Storage Tank.
21. The Chairman also wrote a letter to the Chief Secretary to the Government of Iterate, copy of the letter is marked as Ext. R2(b). In Ext. R2(b), the Chairman has stated that the Committee had come to the conclusion that the Ammonia Tank should be shifted away from the present site. In this letter, there is a reference to a letter of the first respondent wherein it is stated "due to the day time predominant wind direction from the North-West most releases will blow over the aerodrome which has a low population density. Moving the tank to the reclaimed land north of Willingdon Island would essentially give a high probability of the whole of Cochin being down wind of any incident and would therefore be ill advised". After referring to the above quote, the Chairman makes it clear that the above quote would make it appear that the present location is the most ideal one to locate the Ammonia Tank, the fact is quite the contrary. The Chairman says that the proximity of this tank to the Air Port makes it most vulnerable to air accidents that could affect the tank structure resulting in escape of large quantities of Ammonia with devasting and disastrous consequences. He has also adverted to certain reports in the news media about the flying accidents at the Cochin Air-Port resulted in the loss of an Aircraft and the death of one Naval Officer. He has also stated that one Aircraft had crashed not far from the runway itself, and not very for from the area where the Ammonia tank is situated. Such an accident on the Ammonia Tank would have resulted in disastrous consequences, This letter also says that there cannot be two opinion on the urgent need to shift the storage tank to some other location. Of course, the letter refers to the report made by M/s. Cremer and Warner of U. K. but that was not made available to the Chairman. Referring to the report, though not available to the Chairman, he said "but no report from any such organisation can dispel the dangers which are inherent in the location of the tank". The letter had referred to the hazard involved in the transport of liquid Ammonia in barges and for that, acceptable safety standards have to be maintained as prescribed by Lloyds Register of Shipping before the transport is actually undertaken. The Chairman also said that there has been no response from the FACT regarding the risk analysis study. He says that the storage has to be reduced to 500 tonnes as against 6000 tonnes stored. It is important to note in this letter the Chairman has stated that the present site also has another major danger in the proximity of the defence cargo berth which is less than a kilometre from the tank.
22. In paragraph 5 of the counter affidavit referring to Exhibit RI(h) the second respondent said that since steps are being taken for putting up a 900 TPD Ammonia plant for meeting the requirements of FACT, that will dispense with the need of or the import of Ammonia and that the 1st respondent FACT should furnish the time frame for the setting up of the plant incase the plant is not sanctined for the resiting of the tank. Paragraph 6 of the counter affidavit refers to Ext. R 2(b) and states that the first respondent company has assured that the risk analysis study will be carried out by an internationally reputed organisation and they will make available the report before the commencement of the transport. The counter refers to a resolution of the Board Meeting. The resolution reads thus "The Board resolved to request M/s. FACT to take all possible precautionary measures in the case of the Ammonia tank and also to explore the possibility of re-locating the tank from Willingdon Island". The counter affidavit is concluded by saying that on the statements contained in the counter affidavit, the various averments in the original petition are not specifically traversed though not admitted.
23. The second respondent has filed an additional counter affidavit producing letter R 2(c). This is a letter dated 17th September, 1976. It is written by one A. H. Moideen claiming to be the President of The Cochin Port Residential Employees Association, an association registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act. In this letter it is disclosed that vapourised Ammonia gas from the FACT tank near South Coal berth is causing great nuisance to the residents of the Island at the South end, and that people are finding it difficult to pull on because of the Ammonia gas. It is stated that at times the gas causes even suffocation to some persons and it is further stated that it is needless to point out that the Ammonia gas is injurious to living beings.
24. The petitioner served certain interrogatories to be answered by the respondents. The Cochin Port Trust was called upon to answer the interrogatories, numbers 11 to 16. Interrogatory number 11 is a question as to whether there was a minor blast in Q-4 of the Cochin Port Trust berth very close to the Ammonia Tank during the first week of June, 1989. This question has been answered by the Port Trust thus "though there was no blast on 1st June, 1989 in Q-4 on 6th June, 1989, there was minor explosion as a result of which two sides of the railway wagon got damaged due to a battery gas leak. A true copy of my report on the same, dated 30th June, 1989 is produced herewith and marked as Ext. R 2(d) for identification". Exhibit R2(d) report gives the details of what has happened. It is stated that there was an incidence of fire at the ammunition berth (Q 4) on 6-6-1989 at 16.10 hours. On receiving the message of fire at Q-4 berth, the fire Unit rushed to the spot and found that an ammunication cartridge (missile) had exploded and dense black smoke and fumes were coming out from the cartridge. Immediate action was taken for cooling the cartridge by using fire hoses with the help of the Naval Fire Service on stand by duty. Cartridge was cooled down completely and smouldering stopped at 18.30 hours. It is also stated in Ext. R 2(d) that as per the advices of Explosive experts of the Navy/NAD, it was decided to remove all loaded wagons from the site. The exploded cartridges was also taken out from the wagon with the Port's mobile Crane and kept isolated at Q-4 berth. Cooling was continued till late night and adequate stand by duty was maintained throughout.
25. Interrogatory number 12 reads thus "What steps The Cochin Port Trust has taken to remove the tank as its pursued dangers of the Ammonia leak?" It is answered by saying that the primary answer to this is a reference to Exhibit R2(b) which we have already referred to earlier. Copy of the letter of the Chief Medical Officer of the Port Trust dated 2nd August, 1989 is marked as Exhibit R 2(e). The letter indicates that from the registers it is possible to note that there is no "proportionate abnormal increase in the number of Asthma patients reported for treatment when ships reported at the berth with liquid Ammonia according to the dates as per your letter". But this letter further states that when the Port Trust Officer was on leave, the C.M.O. has attended the Port Health Officer's work and that while inspecting the ships discharging Ammonia he had the opportunity to note the leakage of Ammonia and this has been verbally informed to the Captain of the ship then and there. This letter Exhibit R 2(e) is signed by the Chief Medical Officer. Interrogatory number 16 relates to as to whether there are storage tanks for Ammonia or installations which could account for the Ammonia in the atmosphere. This question is answered by saying that there are a number of cold storage installations in and around Willingdon Island and those storages and installations also use Ammonia.
THE OPINION OF THE SOUTHERN NAVAL COMMAND :
26. The third respondent is the Southern Naval Command, Willingdon Island, Cochin. The third respondent has filed counter affidavits in this case. Before referring to the affidavits, we may refer to Exhibit P-5, a letter written by Rear Admiral P. P. Sivamani, Chief of Staff to Imon Ghosh with reference to a letter dated 10th March, 1989 addressed to Vice Admiral RP Sawhney PVSM, Flag Officer Commanding-in-Chief, Southern Naval Command. In his letter, the Rear Admiral has stated that the FACT authorities are fully aware of the potential hazard posed by their Amonia tank within the precincts of the Cochin Port Trust and that the FACT authorities have endeavoured to keep their tanks in good shape. Further it is stated that the FACT management has also not hesitated to call for foreign advice when needed. The letter refers to a study conducted by M/s. Cremer and Warner of UK from the safety point of view and that the consultants have given a "clean bill of health". In this letter, mention is made with respect to the preparation of a contingency plan.
27. For and on behalf of the third respondent, one Commodore, John Padipurackal Abraham has filed a counter affidavit. In this affidavit he has said that ammonia vapour does leak out from the FACT'S storage tank at Willingdon Island occasionally and pollute the environment. Of course, he has made it clear subsequently that he has no personal knowledge or record to show "that ammonia vapour does leak" from the storange tank. He has referred to the expert committee appointed by the District Collector in 1985 and it is said that the present location of FACT ammonia storage tank poses danger to the population at Willingdon Island including the Navy, Cochin Port and Airport establishments and, therefore, it should be shifted to safer location. He has further referred to the fact that no contingency plans with a reasonable chance of success could be formulated and hence the committee has refrained from presenting any such contingency plan. Of course, we will be referring to this report.
28. In the counter affidavit of the third respondent, it is stated that the possibility of extensive leakage on account of sabotage/air crash cannot be ruled out. The third respondent has made it clear that the headquarters have no comments regarding non-disclosure by the FACT to the citizens of Cochin of the hazards arising out of air crash, terrorist action or an enemy bombing. Further it is stated that the third respondent has not taken action, since the FACT has assured the taking of maximum precautions in the matter. In paragraph 8 of the counter it is stated thus:--
"On subsequent examination, the dangers brought out in the petition were thought to be real and reported to Naval Headquarters vide this Headquarters letter 1009/10/7/PC dated 11 August 1989".
It is pertinent to note that in this counter affidavit, the third respondent has stated that considering the fact that the expert committee had accepted the danger posed by the ammonia storage tank to the naval and civilian population of Willingdon Island, it is strongly felt that the storage tank may be shifted at the earliest. In paragraph 10 also reference is made to the letter, 1009/10/7/(PC) dated 11th August, 1989. When this affidavit was filed, this court directed the third respondent to produce the letter referred to in the counter affidavit. Pursuant to the order of this court, copy of the letter has been produced in a sealed cover, stating that the letter is "classified in nature" and sought leave of the court to produce the letter for the perusal of the court in a sealed cover.
29. Counsel for the first respondent submitted that to claim privilege in respect of a document directed to be produced by the court, the requirements of either Section 123 or Section 124 of the Evidence Act have to be complied with and in the case, though the letter has been produced the affidavit in support of the production of the letter does not specify the requirements of either Section 123 or Section 124 of the Evidence Act. However, we perused the letter, and we passed an order on 14th December, 1993 finding that there is no reason to claim privilege to produce it in this litigation. We have also said in that order that the third respondent cannot claim privilege either under Section 123 or Section 124 of the Evidence Act, on the affidavit filed along with the sealed cover containing the letter; we have marked the document as Ext. X 3. Ext. X 3 is a copy of the letter written for the Flag Officer Commanding-in-Chief by the Rear Admiral, Chief of Staff, Head Quarters Southern Naval Command, Cochin. This letteris dated 11th August, 1989. It refers to the original petition.
IN PARAGRAPH 9 OF THE LETTER IT IS STATED THUS :
"On carefully examining the issue, this Headquarter considers that the FACT Ammonia Tank which stores 10,000 tons of Ammonia does pose a serious threat to Cochin in general and to the naval base in particular in view of its close proximity. An accident in the nature of an air crash, or sabotage causing leakage could have disasterous repurcussions."
In paragraph 10 of the letter it is stated that as the contentions taken in the writ petition cannot be denied in view of the report of the committee, it is recommended that the matter be taken up with the Government for immediate shifting of the ammonia tank to a safer place.
30. From the affidavit and from Exts. X 3, it has to be noted that the stand taken by the third respondent is that the ammonia tank in question is posing a serious threat to Cochin in general and to the naval base in particular.
THE CASE OF THE POLLUTION CONTROL BOARD:
31. Now we proceed to state the case of the 4th respondent, the Kerala State Pollution Control Board. The 4th respondent has filed a detailed counter affidavit. For the present, we are not giving the full details of the counter, affidavit since we feel that we have to refer to this counter later. In paragraph 5 of the counter, it is stated that the Board has considered the question of potential danger of the existing tank after evaluating the attending circumstances and prepared a report on 4-4-1987. Copy of the report is Ext. R4(a). The Board has made certain suggestions in that report. It is stated that according to the Board, the chances of failure of existing ammonia storage tank though not high, cannot be entirely ruled out and that the safety measures are not fully adequate to meet the eventuality of the failure of the existing storage tank. In the report, suggestion to remove the storage tank is also made by increasing the production of ammonia by the first respondent domestically to avoid import of ammonia from abroad and storing the same in the port area. In paragraph six the 4th respondent has stated that the storage tank in Willingdon Island is located in a sensitive and strategic location very near to the Air Port. Wharf, Railway Station and the Naval Base, and it is not a ideal place to store ammonia in such large quantity. Although occasional leakage of ammonia will not be a serious hazard potential, danger apprehended by the petitioner on account of any possible natural or other calamities cannot be fully ruled out or ignored.
32. It is also stated that in case of release of ammonia through safety valve, it can be converted to harmless product viz, nitrogen, but in the case of release of ammonia in huge quantities by way of accident etc it leads to fatal concentration of ammonia in air, i.e. 2,000 PPM; and that nothing can be done and the entire city will be affected.
33. Ext. R4(a) produced along with the counter is dated 4-4-1987. It is a letter from the Chairman, Kerala Pollution Control Board to the Environmental Officer, Paryavaran Bhavan, B. Block, Phase II, C. G. O. Complex, Lodi Road, New Delhi. The letter refers to the task force constituted to consider ways and means of combating any major leak from the tank, and it is stated in the letter that the committee constituted by the task force had expressed inability to do so on the ground that such a plan would not have a reasonable chance of success and would instead give a false sense of security. In this letter, it is referred that "the FACT authorities also could not suggest any contingency plan, Hence the task force recommended that the tank be shifted from Willingdon Island to an isolated safer location. The FACT authorities then expressed willingness to shift the tank to Vallarpadom. The Board did not support this suggestion. Vallarpadom is fairly thickly populated, isolated island with no road outlets. Evacuation of the inhabitants by water transport immediately after a disaster will be practically impossible. "It is also stated in the letter that FACT authorities reported that they were in search of a better site and further discussions with the Chief Secretary is awaited, the outcome of which shall then be communicated.
CONSIDERED STAND OF THE BOARD ON IMPORTANT ISSUES
34. We may now refer to the Board's considered stand on important issues in this case.
(1) The chances of failure of the existing amonia storage tank, though not high, cannot be entirely ruled out. As the agencies such as the fire force, police, navy and district health authorities are not convinced of the adequacy of the safety measures and are not confident of evolving a successful contingency plan and as the tank is situated in a strategic location, it is better that the storage of ammonia at the existing site be stopped and the tank be emptied urgently. No storge of such hazardous chemical is advised any where near the important strategic installations especially when there are inherent constrictions for mass evacution in cases of accident.
(2) FACT-Cochin Division already has a 600 T/day ammonia plant. The present production rate is about 450 T/day. The production capacity of this plant may be fully utilized. The additional 300 T/day required may be met by augmenting the production capacity. Any interim storage ought to be in the factory premises itself. In fact the Cochin Division already has storage tanks having a total capacity of 6500 T.
(3) Shifting of the storage tank in Willingdon island to Vallarpadom or any other place outside the FACT premises is not advisable.
(4) For storage of ammonia and other hazardous materials within the factory premises FACT should provide fullfledged safety measures. They should also prepare a contingency plan to the satisfaction of all the agencies concerned.
THE STANDTAKEN BY THE MINISTRY OF ENVIRONMENT
35. Now we turn to the case of the 5th respondent. The 5th respondent is the Ministry of Environment, New Delhi. It is stated in their counter affidavit that the disaster potential exists in all the places where storage tanks are installed. Ammonia is stored as atmospheric pressure and so, there is no possibility of explosion, however, a possibility of major leak cannot be ruled out.
36. It is pointed out in the counter affidavit that there are six port locations in India where similar installations exist and Willingdon Island is not the only location. This respondent has also referred to the task force committee constituted by the State Government to consider the ways and means of combating any major leak form the ammonia storage tank and the possibility of shifting it to a safer place. It is stated that the FACT authorities suggested shifting of the tank to Vallarpadam, another thickly populated Island north of Wilingdon Island and that the State Pollution Control Board did not support this as Viallarpadam is thickly populated and does not have proper road outlets and the evacuation of the inhabitants in the event of a disaster would have been practically impossible. The 5th respondent has stated that liquified ammonia is always stored at minus 33°C and above this temperature it vapourises, and therefore in the event of a leak it cannot be shovelled back into the tank.
37. We have to say that significantly the respondent has very plainly stated thus:--
"We do not support either the continuation of the ammonia storage tank at the existing site or its shifting to Vallarpadam Island. We are of the opinion that the necessity of the storage be reduced, if no eliminated by augmenting the production capacity of the Company. Any storage required should be within the factory premises. Even if this could be reduced by a continuous process, it is all the more desirable."
OPINION OF THE DISTRICT COLLECTOR
38. The 6th respondent is the District Collector. He has filed a report on 12th October, 1990 pursuant to the orders of this court on 30-8-1990 and 1-10-1990. It is stated in the report that pursuant to the order dated 1-10-1990, the District Collector has taken all the efforts to find out the feasibility of the work of shifting the present ammonia tank to a safer location in co-ordination and cooperation with the Cochin Port Trust. In this report, the District Collector has said that he has convened a meeting of the officials of the FACT and Cochin Port Trust on 5-10-1990 for the purpose of having an idea for fixing a new location of the ammonia storage tank. It is stated that the outcome of the meeting is taken down as a short factual report. The report is produced and marked as Anenxure A along with the report of the 6th respondent.
39. For the present we are only referring to the final conclusions arrived at in the meeting. In paragraphs 19 and 20 of Annexure A it is stated that according to FACT 900 TPD Ammonia Plant at Udyogamandal can be commissioned early in 1995. Once this plant is commissioned, import of ammonia can be permanently dispensed with and existing ammonia tank at Willingdon Island can be decommissioned. It has to be borne in mind that even the resiling and construction of ammonia tank at Vypeen Island is a stop gap measure, as the permanent solution is the construction of 900 TPD Ammonia Plant at Udyogamandal for which steps are progressing speedily. As the time frame for the completion of the berth on the western side of Vypeen Island for reesiting the ammonia tank and for the commissioning of 900 TPD Ammonia Plant at Udyogamandal is more or less equal, resiting the ammonia storage tank at Vypeen Island seems to be now necessary because a permanent solution for this problem will be achieved by commissioning the 900 TPD Ammoinia Plant at Udyogamandal early in 1995. In the overall interests of FACT and in the interest of safety of the public it is essential that the proposed ammonia plant at Udyogamandal has to be established as quickly as possible.
40. In paragraph 3 of Annexure A it is stated that FACT has submitted a feasibility report for the construction of a 900 TPD Ammoinia Plant at Udyogamandal to the Government of India. According to FACT, the proposal for ammonia plant at factory premsies is in an advanced stage of clearance and it is hoped that the clearance from the environmental angle will be obtained in Nov. 1990. It is pointed out that the proposal requries clearance by the Public Investment Board and the Cabinet Committee on Economic Affairs and FACT is stated to be hopeful of getting clearance by June 1991. From Annexure A and from the report of the Collector, it is possible to note that all those who are concerned including FACT are unanimous in their opinion of shifting the 10,000 tons Ammonia tank now existing in Willingdon Island.
OPINION OF STATE GOVERNMENT
41. 7th respondent the State of Kerala, in its counter affidavit has admitted that the location of the storage tank is close to the thickly populated Mattancherry Area and is also in close proximity of Cochin Port Trust, the Headquarters of the Southern Naval Command, Air Port and the Willingdon Island, Railway Station etc. It is mentioned in the counter affidavit that during the year 1985, there had been some reports about the leakage of ammonia stored in the tank. On the request of the first respondent, the District Collector, Ernakulam convened a meeting of various district level officials to consider the steps to be taken to prevent any such leaks and also for drawing of an emergency plan in case such contingency occurs. Such a meeting was convened on 23-4-1985 and in that meeting it was decided to constitute a task force with the Deputy Conservator, Cochin Port Trust as Chairman and nine other expert members to study the subject and present a report on the matter. A confidential report was given by the task force recording their assessment of the problem and their findings. It is stated that in the meeting held on IO-I-1986 it was decided that the report submitted by the task force may be placed before the Government with a request to take necessary further actions based on the findings of the task force.
42. In paragraph 4 of the counter affidavit, the 7th respondent has stated that the first respondent was also taking up the issue of shifting the tank to a safer place with the Government of India. Of course, there is some controversy as regards the alternative location and further it is seen stated that the FACT has taken the issue of seeting up a new ammonia plant with the Government of India. In paragraph 7 it is clearly stated the as per letter dated 30-6-1989, the FACT has stated that they have applied to Government of India with a proposal to manufacture ammonia within the premises of the FACT itself at Udyogamandal. Further, it is stated that for the installation of the new plant, a period of two to three years is required and unit is to be established by 4 to 5 years.
43. In this affidavit, the Government has stated that it is the duty of the FACT to ensure that there is no leakage of ammonia and to provide adequate and sufficient safeguards for the proper and effective maintenance of the tank. In answer to the averments in paragraph 4 of the petition, the 7th respondent has stated that if a major leak of ammonia occurs, it would affect the entire population not only of Willingdon Island, but also the nearby places. Further, the 7th respondent has stated that this fact is not a criteria for not taking into consideration the increasing facilites of safety measures in order to prevent the leakage or any other kind of catasrophe. The tenor and tone of the counter affidavit of the 7th respondent points to the necessity of shifting the ammonia tank to a safer location.
ADDITIONAL RESPONDENTS AND THEIR VIEWS
44. In the original petition 16 persons got themselves impleaded as additional respondents 9 to 24. Additional respondents 20 to 24 are associations and unions of the employees of the first respondent. They have filed a common counter affidavit. By an inadvertant mistake, in the counter affidavit, they have said that they are respondents 9 to 13. It is stated that they have got sufficient reason to believe that the petitioner is not acting on its own, but instigated by someone who is interested in retarding the industrial development of this country. Further, they have said that it is genuinely suspected that multinationals and their agents who have vested interests are behind the petitioner in instituting the above petition. Vested interests in developed nations hate to see developing nations become self sufficient in any way. Counter proceeds to say that the storage tank was in existence for a long time and the petition is moved when FACT is about to commence production of Caprolactum which has been imported at high cost. It is stated that the petition is filed motivated by extraneous considerations.
45. It is also state that there is no threat to human life on account of the storage tank. There is no basis for the apprehension that the whole city and all its strategically vital installation will be wiped off if any major leak or a catastrophe happens to the storage tank. Further they have stated that Cochin is not the only port where similar installations have been established and all over the world as well as the other parts of India such storage tanks have been functioning smoothly for decades. The respondents have further submitted that the tank has been installed very safely under expert guidelines of world reputed designers and manufactureres of storage tanks of this nature. They have also stated that the apprehension of a hazard potentional has no technical or logical basis and the grounds raised for action by the court are mere apprehensions.
46. Ultimately they have said that the demolition or shifting of the ammonia tank would result in immediate stoppage of plants at the FACT thereby thowing large number of employees out of employment. A number of employees and their families will be adversely affected as their only source of income is the wages earned from FACT. They wanted the petition to be dismissed.
47. Now, we have outlined the case of the petitioner and the defence of the first respondent and the different attitude and exposures taken in this case by the other respondents. The question posed before us is of stupendous consequence. We are fully informed of the fact if we order decommissioning of the plant, it will have multi faceted repercussions and it may cause a seminal impact in the industrial and agricultural sectors of this State and perhaps to some extent the country as a whole, particularly in the agricultural sector. We are clearly informed of the fact that we will never be justified if we slur over the question or postpone the issue or refrain to take action only on the above said considerations; since what is notched against these considerations is an avoidance of a potential morbid genocide. We are certainly informed of the truth that when science and technology are put to the maximum use in producing goods and services calculated to advance the quality of life, there inheres a potent element of hazard or risk inherent in the very use of science and technology and it may not be possible to eliminate such hazard or risk in its entirety. It may be out of time fatuous, asinine and thoughtlessness to adopt a policy of not having any chemical or other hazardous industries merely because they pose a hazard or risk to the community. Such industries in the modern set up may be necessary for the industrial, agricultural and economic growth of the country and the resultant well-being of the people. But we must strain every nerve to minimise the hazard or risk to the community, by taking all necessary steps for locating such industries in a manner which would pose least risk or danger to the community. If the court is convinced that it is possible to minimise the hazard or risk to the community in not allowing an industry to be run in a location inherent with potential additional danger and risk to the community certainly the court is bound to act and should give necessary directions.
48. The case presented before us poses environmental problems, perhaps not only an environmental problem, but problem of such magnitude which poses danger to the community to the extent of annihilation of the whole community.
49. It is difficult to over-estimate the present levels of concern about environmental problems which pervade not only the developed countries, but also the underdeveloped countries. There is a ubiquitous feeling that more ought to be done to halt environmental decline and ultimately to pass on the Earth to future generations in at least as good an ecological state as the present generation found it. Whilst at a theoretical level these sentiments are frequently tantamount to moral, political or philosophical convictions, they invariably entail calls for practical measures for environmental protection or improvement. Environmental pressure is applied through the diverse forces which shape public and individual opinions to redirect industry, commerce and personal lifestyles into a more environmentally benign course. Clearly, enhancing awareness and influencing behaviour is a first step towards environmental improvement, but where an environmentally preferable course of action is perceived to involve a diminuation in standard of living or a reduction of freedom of choice, the recalcitrance of human nature is such that it needs to be reinforced if progress towards a common good is genuinely to be made.
50. The environmental imperative is ultimately a matter of public and private rights and duties and interests of future generations which are not available as negotiable commodities to be purchased at any "going market rate". Effective environmental protection and improvement is, therefore, a matter of legal rights and duties. The unavoidable issue is how law is appropriately utilised to meet the environmental challenge. Though the judicial development of the environmental law vigorous and imaginative, at times it may found wanting. The least that the court may do is to examine whether appropriate considerations are borne in mind by authorities concerned and in appropriate cases, the court may go further, but how much further must depend on the circumstances of the case. We feel that the court is bound to give if the circumstances impels corrective or other necessary directions though the court may not attempt to nicely balance relevant considerations. If such nice balancing is not necessary to come to a conclusion and if the Court comes to an obvious conclusion which would force the court to give appropriate directions, certainly we feel that the court has got the power and obligation to give such necessary directions. Of course if the facts predicate doubtful questions and questions involving the nice balancing of relevant considerations, the court may feel justified in resigning itself to acceptance of the decision of the concerned authority.
51. The Supreme Court in the decision reported in AIR 1987 SC 965 said that "the Government of India to evolve a national policy for location of chemical and other hazardous industries in areas where population is scarce and there is little hazard or risk to the community and when hazardous industries are located in such area, every care must be taken to see that large human habitation does not grow around them. There should preferably be a green belt of 1 to 5 k.m. width around such hazardous industries.
52. We have to investigate two broad questions in this case. The first question is the possibility of the operational failure of 10000 tonnes of ammonia storage tank and the consequent leak of ammonia and the degree of pollution of air and the resultant ecological imbalance they may cause thereby and as a result of this environmental pollution the hazards that have to be faced by the people of Willingdon Island and the city of Cochin. The second question that we have to answer is as to whether there is any reasonable possibility of catastrophic failure, of the tank resulting in a crack or break or a rupture which would result in an uncontrollable major leak of ammonia with its resultant devastation of the entire living population in Willingdon Island and the city of Cochin and surrounding places on account of the seminal sensitive and strategical siting of the tank in the port area very close to the runway of the airport and very near to the Southern Naval Command.
53. In investigating these questions, we think that we must be informed of the natural hazards attached to the storage of bulk volumes of liquid ammonia. We begin our investigation with the properties of ammonia.
PHYSICAL PROPERTIES OF AMMONIA:--
54. Anhydrous ammonia is present both in the gaseous and liquid form. Under atmospheric pressure and temperature conditions, it will be in gaseous form only. Ammonia readily dissolves in water forming aqueous solution with liberation of heat. Ammonia vapour is colourless and has a pungent odour which serves as its own warning agent. Ammonia is lighter than air and, therefore, in open atmosphere, it will disperse upwards by virtue of its own buoyancy. However, ammonia vapours produced from cold liquid may form ammonia-air mixtures heavier than air which may stay close to the ground for some time. The Threshold Limit Value (TLV) of ammonia is 50 ppm by volume. However, its presence is detectable due to its own odour even at 25 ppm.
TOXIC EFFECTS OF AMMONIA
55. In general, ammonia gas under high concentration may cause irritation to eyes and respiratory tract. Skin contact of liquid ammonia as well as strong aqueous ammonia may cause burns.
56. Its concentration-wise general toxic effects are given below:
vapour concentration (ppm-v/v) General toxic effect Exposure period 25 Odour detectable by most persons _ 50 No adverse effect For eight hours 100 No adverse effect for average worker Deliberate exposure for long periods not advisable.
400Immediate nose and throat irritation No serious effect from 30 to 60 minutes 700 Immediate eye irritation No serious effect from 30 to 60 minutes 1700 Convulsive coughing, severe eye, nose and throat irritation Could be fatal after 30 minutes 2000-5000 Convulsive coughing, severe eye, nose and throat irritation Could be fatal after 15 minutes 5000-10000 Respiratory spasm, rapid asphyxia Fatal within minutes POSSIBLE SOURCES OF AMMONIA LEAKS AND LIKELY CONSEQUENCES
57. The possible sources of ammonia leaks can be classified as under:
a) Small leaks of ammonia from flanges, value glands, pumps, pipes and compressors and
b) major leaks of ammonia from external causes.
a) SMALL LEAKS When small leaks occur, the safety procedures adopted by FACT are as follows:
1 Isolate the leaky line or equipment 2 Purge out the line by venting
3. Rectify the leaks after taking and observing relevant safety measures.
b) MAJOR LEAKS Major teaks can be caused
1. due to an air crash in the vicinity of the tank, and
2. by sabotage.
When the spillage of liquid ammonia takes place, it flashes into gaseous stage and the gas spreads to nearby places. The dispersion of ammonia is dependent on factors like wind direction, velocity, atmospheric humidity, etc. When spillage is high, the ground gets cooled down and the flashing of ammonia stops, forming a ground level cloud. When it comes in contact with atmospheric humidity, sudden expansion takes place and particles of size 10 to 30 microns form an aerosol, cloudy in appearance and will be carried away by buoyant vapours, HAZARDS
a) Severely irritant to skin, mucous membrane of nose, throat, lungs and eyes.
b) Produces severe alkaline burns on the skin at 2000 ppm concentration.
c) Severe irritation and heamarrhages, swollen eye-lids and even partial blindness when the level is 700 ppm concentration.
d) Irritative to nose and eyes when level is 50-400 ppm.
e) Threshold limit value for 8 hour exposure in 50 ppm.
f)It causes burns to eyes and results in corneal ulcers and blindness.
g) It causes coughing, respiratory arrest, oedema of lungs, increased secretion of saliva and retention of urine.
h) It causes instantaneous death due to respiratory arrest or latter due to pulmonary oedema when the level of concentration goes above 5000 ppm.
SITING OF THE AMMONIA STORAGE TANK
58. The tank is located at south coal berth at the western side of the Willingdon Island. It is protected by high wall on all sides. The distance between the periphery of the tank and the wall on the eastern side is 1.5 metres and on the northern side 5 metres. The refrigeration compressor house is on the southern side of the storage. The wagon loading pumps are on the western side.
INSTALLATION WITHIN 500 METRES:
a) East: Railway track, canteen, loco shed Bristow road, Aerodrome tip
b) South : FACT and FC1 godowns and CISF barracks.
(c) West: Railway track for wagon loading, south coal berth and Mattancherry shipping channel.
(d) North : Canteen, toilets and Mattancherry Wharf and godowns.
INSTALLATION WITHIN TWO KILOMETERS RADIUS :
(a) Cochin Port installation including Mattancherry and Ernakularm Wharfs and residential areas.
(b) Southern Naval Command and residential areas. (c) Aerodrome,
(d) Cochin Harbour Terminus and Mattancherry halt railway station.
(e) Harbour Police and Fire Stations.
(f) Commercial complexes and residential areas.
(g) Opposite of Mattancherry channel and fishing harbour.
The tank was designed by M/s. UHDE GmbH, West Germany, a world leader in this field. It has been constructed as per API-620 Appendix R which is the code internationally followed for the purpose. M/s. Lloyds was the agency to monitor the construction and to ensure the quality of workmanship right from material testing to the erection of the tank.
CONSTRUCTION OF THE FOUNDATION AND ITS FAILURE:
DESIGN PARAMETERS:
(a) Maximum capacity 10000 MT of liquid ammonia.
(b) Type Cup in tank with a single roof.
(c) Design code API 620 Appendix 'R' -- DIN 4119 for the roof (d) Tank desing pressures : Max. pressure 800 mm WG Min. pressure 50 mm WG Operating pressure 400 mm WG (water guage) (e) Design Temp. and Specific gravity 33 Deg. C. 0. 683 (f) Dimensions -- Outer shell 41.6 M dia x 12.3 M.ht. Inner shell 40 M dia x 12.3 M.ht. (g) Wind load 100 Kg/ M2 (h) Earthquake factor 0.04 (i) Insulation 100 mm thick Poly Urethane Foam fire retardant cast-in-situ all round the tank and top and cladded with corrugated aluminium sheets at sides and bottom plain aluminium sheets.
59. The foundation and its designs were, handled by the FACT Engineering and Design Organisation itself. The soil investigation report was furnished by the Cementation Company and it did not provide any specific recommendations or caution against the treacherous nature of the strata. The construction of drive in cast-in-situ concrete piles was carried out by M/s. Simplex Concrete Piles (I) Pvt. Ltd. and the firm had guaranteed their behaviour and load capacity. The piling work was started on 3rd October, 1973 and completed on 11th December, 1973. The construction of tank by UHDE GmbH took about one year and it got ready to receive its water test load on 13th February, 1975. During water test load reaching to about two-third of design capacity, the outer piles started showing cracks and soon after it was noticed the centre had settled excessively. Unloading by pumping out water was done as quickly as possible and it was found that the tank was unable to take the design load capacity and pile foundations indicated a failure.
60. The issue was discussed in great details both collectively and individually with the concerned officers of FACT Engineering and Design Organisation, UHDE GmbH and Dr. Kurt Magar (a consultant in foundation engineering deputed on behalf of UHDE GmbH). It is admitted that the tank foundation is situated in soft clayey silts dredged from the sea bottom. It is known for its weak and treacherous nature of soil strata to large depths.
61. When there was failure of foundation, the first respondent sought the advice for remedial measures from the Central Building Research Institute and the German experts sent by M/s. UHDE GmbH.
REPORT ON THE FAILURE OF AMMONIA TANK FOUNDATION
62. The primary cause of failure of Ammonia Tank foundation as inferred by the Central Building Research Institute is apparently the plastic failure of the inner piles. There are other factors also which contributed to the final failure such as-
1. Drop in the strength of soil even below 35 metres in few locations
2. Weak concrete at the pile column joints
3. Improper placement of reinforcement
4. Excessive positional deviation of piles and eccentric placement of column up to 15 cm.
They said looking in retrospect, we may review the following aspects which are relevant to the subject.
EXCLUSION OF THE CIVIL WORKS FROM THE TURNKEY JOB OF M/S. UHDE
63. If the design and execution of the Civil works were included in the scope of M/s. UHDE, the responsibility for the satisfactory performance of the installation would have rested with a single organisation. But M/s. UHDE's offer for doing the civil works was subject to the condition that FEDO should furnish the soil data. This watered down the responsibility of the main contractor. The Indian know-how in the matter of foundation engineering is considered as quite adequate and experienced and reputed firms in this field are available in the country. It was, therefore, not considered necessary to entrust the civil works to M/s. UHDE especially on the basis of soil investigation to be done by FEDO. The civil works were therefore excluded with resultant savings in foreign exchange.
SELECTION OF FOUNDATION TYPE
64. Pile foundation is generally adopted for heavy structures in the Cochin area and in Willingdon Island. Even the Cochin Shipyard has adopted pile foundation for their major structures. Most of the multi-storeyed buildings in Ernakulam are founded on piles. When settlement has to be reduced to the minimum and possibility of a tilt of the superstructure is to be avoided, pile foundation is the only well tried method available. Even though CBRI has suggested the provision of sand drains and preconsolidation a a probable method for a new foundation, their report states that this has to be decided after extensive soil investigation. They have also not stated about the anticipated settlement in such a foundation.
65. Sand drains and preloading is comparatively a new technique in this country, whereas piling has become an established and well tried practice for which experienced and reputed firms are available for execution. The selection of pile foundation is therefore considered as quite appropriate in the present case.
SELECTION ON CONTRACTORS FOR FOUNDATION WORK
66. Though five firms purchased tender documents, only two of them had submitted their tenders for this work. Out of this, the lowest offer was from Messrs. Simplex, a reputed firm having wide and varied experience in the field of piling. They are included in the Committee which prepared the Indian Standards for foundations including piling. Their technical director, Sri R. K. Das Gupta is a member of various committees of the Indian Standards Institution on pile foundations and Foundation Engineering of which Prof. Dinesh Mohan of CBRI is the Chairman. M/s. Simplex were at that time doing similar type of piling work for Cochin Shipyard Ltd. Considering all these factors the work was entrusted to Messrs. Simplex.
DESIGN AND CONSTRUCTION WORK
67. The soil investigation for the site was conducted by Messrs. Cementation Co., Bombay. The design of the piles were the responsibility of M/s. Simplex. FEDO is responsible only for the design of the top slab (Pile cap). The work was carried out by M/s. Simplex as per their standard practice under the supervision of the Construction department of FACT.
UHDE'S STIPULATION REGARDING FOUNDATION SETTLEMENT
68. M/s. UHDE had stipulated limiting the differential settlement of foundation to 2 mm. Structures like steel tanks can tolerate much more differential settlement. During subsequent discussions at New Delhi, Mr. Syberg the tank expert from M/s. UHDE, has stated that settlement up to 9 cm. can be tolerated, and CBRI has formulated their rectification proposals on this basis.
RESPONSIBILITY
69. CBRI during their investigation have done a computer aided analysis of the pile cap and have found that the loads transferred to the piles at the time of failure were varying from 44.46 to 48 tonnes. This shows that the loads transferred by the pile cap was almost uniform and very nearly tallied with the actual load on the piles at the time of failure. Dr. Kurt Magar has also stated in his report that the pile cap is transferring load uniformly to the piles.
70. The design of piles was the responsibility of M/s. Simplex and they are answerable for the failure of foundation.
71. In any engineering work, the quality of work reigns supreme. Even slight carelessness can cause disastrous results.
CBRI have made the following observations :
1. Weak concrete at the junction which had possibly crushed.
2. Improper placement of reinforcement.
3. Excessive positional deviation. The column portion was found at places displaced by more than 15 cm.
Dr. Kurt Magar in his report has stated that discontinuity of concrete in piles is possible in depths below the joints between the column and pile Section.
72. Some of the photographs taken of the exposed portion of piles (all the piles are not yet exposed) confirm the above conclusion of CBRI. Cracks could be seen in the portion of the piles denoting weak concrete below the pile column junction. Apart from the positional deviation the top column portion connecting the piles to the pile caps are seen constructed with eccentricities of 6" from the piles below. What happened to the reinforcement rods in such cases is not known. In certain cases the reinforcement bars are seen twisted and coming out of the concrete much below the pile. It is difficult to say now as to whether it can be judged that the quality of work in deeper portion of the pile from what is seen in the exposed portions. In spite of the reputation of the piling company, their workmanship on this job appears to have been of very poor quality.
CONCLUSION OF CBRI
73. "Tenders have been invited for the rectification works based on the proposals given by CBRI. We have analysed the failure of the foundation in retrospect and having had this mishap, we must make sure that the rectification work which we are attempting to do will be foolproof." On this question the CBRI have said that they cannot give a guarantee though they have opined that the proposals are adequate to ensure the safety of the structure. They have also added that since CBRI wilt be associated with the rectification work, they will advise suitable corrective measures if any problems crop up during execution.
74-75. CBRI is a reputed National Organisation and its Director, Prof. Dinesh Mohan is the Chairman of various committees of the foundation engineering group of the Indian Standards Institution. He is also an Internationally accepted authority on soil mechanics and foundation engineering. In consideration of these facts, FEDO has recommended acceptance of CBRI proposals for the rectification work.
76. As FEDO does not have the know-how to critically examine, accept or reject the CBRI proposal for the rectification methods, whether they can take up the rectification with no firm guarantees they said that it is a matter to be decided at higher levels.
REMEDICAL MEASURES ON FAILURE OF FOUNDATION :
77. The report from Dr. Kurt Mager (Foundation expert) shows that the main reason for the settlement of the foundation was due to plastic failure of the inner piles because of the additional load caused due to negative friction in the upper 25 m of weak soil strata surrounding the piles. Three solutions were suggested :
(a) Repair of the tank foundation for the capacity of 10000 t.
(b) Repair of foundation for capacity of about 5000 t. and construction of a new foundation for a new 5000 t. tank.
(c) Construction of a new foundation for 10000 t. tank and lifting and shifting the existing tank to the new foundation.
The report further shows that solution (a) is the most economical and least time consuming method but also the most difficult one. Solution (c) was mentioned as the most costly although the safest method.
78. After getting the report from the Central Building Research Institute (CBRI), the first respondent opted the first solution for repairing the foundation. We will give the details about the procedure adopted by the CBRI. However, for the present, we have to note that out of the three solutions suggested, the most economical and least time consuming solution was accepted by the first respondent, but not the safest.
79. The rectification of the foundation of the tank was done under the supervision of the CBRI and after obtaining the report of the CBRI, on the repaired foundation, the tank was commissioned. Ext. R1(a)(c) is the report of CBRI. In the report, CBRI has stated that the tank was designed for carrying 10000 tons of ammonia and in the original design the foundation piles numbering 217 were assigned 88 tons of safe load per pile.
80. The water test loading began on 13-2-1975 and when the load attained a value of 8000 tons on 12-3-1975, foundation failure was noticed. Consequently, the tank had to be emptied out. This was accomplished by 24-3-1975. At this stage, the problem was referred to the CBRI who investigated the reason for the failure and furnished recommendations on the remedial underpinning. While recommending the most suitable underpinning method, it was aimed to restore the ammonia storage capacity to at least up to 8000 tons. Suitable measures were suggested for the tank back into service. These were: (i) to provide RCC basement integral with the piles for deriving benefit of net stress relief, (ii) lifting of tank bottom slab in order to achieve the required camber. It was concluded that the benefit of net relief of 5400 t added to the load shared by piles would restore the desired ammonia storage capacity. The safe pile load capacity of 45 tons, estimated based on field static cone tests, presumed satisfactory piling below the joints. Data collected by pile load tests and other observations during excavation, warranted a revision of the pile safe load capacity. A number of modifications had to be incorporated in the design. These are (a) Safe pile load capacity was reduced and in order to cater for the variable pile support capacity, the basement was made adequately rigid, (b) The basement span was extended beyond the outermost row of pile to achieve greater benefit of relief. Provision was also made for isolating of 'a' row piles from basement to allow the free relative movement, (c) Water test ultimate load was reduced according to the provisions in standard practice in poor foundation conditions, (d) Rope drains were deleted in view of the above modifications.
81. It is significant to note that water test of ultimate load was reduced on the basis of the provisions in standard practice in poor foundation conditions. From the report it is seen that "the original plan of testing the tank with water to the expected height of ammonia inside the tank was not considered necessary in view of the provisions of the related API standard". The test water load was limited to a maximum of 11600 t. arising corresponding to ammonia storage of 10000 t. In Table 6 of Ext. R1 (a)(c) report, these facts are given. The maximum water test load is 11600 t. Maximum Ammonia load including overpressure is 11600 t. Dead Loads :
(i) Super structure = 2350 t.
(ii) Underpinning works = 5040 t.
Total load on foundation = 18990 t.
Relied due to basement including buoyancy = 10205 t.
Estimated transferred load to soil and piles = 8785 t.
82. From the report of the CBRI, Ext. R1(a)(b), it is possible to discern that the opinion of the CBRI was that originally the pile load capacity was grossly overestimated as 88 tons. Then the CBRI based on static cone data estimated it as 44 tons. After excavation and perhaps on physical examination CBRI decided to test few piles and found that the actual safe load capacities vary from 13.5 tons to 50 tons in the 15 piles tested. It is significant to note that only few piles were tested. On the basis of the testing of few piles, a safe load of 32.9 was fixed. It is to be remembered that only few piles were tested. It is not certain whether if more piles were tested, the safe load may or may not give an average of 32.9 tons. There were altogether 217 piles. 28 piles contained foreign materials such as clay at the pile column joint. In the report, Ext. R1(a)(c) it is stated that the quality of piling work in some piles was poor to too poor. As stated earlier, out of the 217 piles, only 15 piles were tested. The possibility of some piles having safe load capacity may be less than 13.5 and so, we feel that there is reason for not accepting the average.
83. True, in the matter of construction of foundations involving piles, piles have to be tested in two stages. Ext. R1(a)(1), IS. 2911 (part IV-1985), deals with two types of load tests; first is the initial test and the second is described as routine test. The initial load test is done for the purpose of determining the ultimate load capacities and for arriving at the safe load values and this is done before the major piling operations commence. Routine lest is defined in Ext. R1(a)(1) as one carried out on a working pile with a view to check whether pile is capable of taking the working load assigned to it. Working load is defined as the load assigned to a pile according to design. Initial test is dealt with in paragraph 4.1 of Ext. R1(a)(1). It is stated that the test is required for one or more of the following purposes. This is done in case of important and/or major projects and number of tests may be one or more depending upon the number of piles required, (a) Determination of ultimate load capacities and arrival at safe load by application of factor of safety, (b) to provide guidelines for setting up the limits of acceptance for routine tests, (c) to study the effect of piling on adjacent existing structures and take decision for the suitability of type of piles to be used, (d) to get an idea of suitability of piling system, and (e) to have a check on calculated load by dynamic or static approaches.
84. Routine test is required for one or more of the following purposes (a), (b) and (c). The number of tests may generally be one-half per cent of the total number of piles required. The number of the test may be increased up to 2 per cent in a particular case depending upon nature, type of structure and strata condition : (a) One of the criteria to determine the safe load of the pile; (b) Checking safe load and extent of safety for the specific functional requirement of the pile at working load; and (c) Detection of any unusual performance contrary to the findings of the initial test, if carried out.
85. In paragraph 6.1.5.1. of Ext. R1(a)(1), it is seen stated that routine test shall be carried for a test load of at least one and half times the working load; the maximum settlement of test loading in position being not exceeding 12 mm. It is admitted that the safe load of some piles as per the test were very low. But, we doubt whether, was it not essential that the final test done as programmed earlier, so that there was enough safety factor in dealing with unusual events in the case of keeping on the foundation the tank storing hazardous material like ammonia.
86. Karl Terzaghi, Professor of the Practice of Civil Engineering, Harward University, Lecturer and Research Consultant in Civil Engineering, University of Illinois and Ralph B. Peck, Research Professor of Soil Mechanics, University of Illinois, in their book 'Soil Mechanics in Engineering Practice' have observed thus : "If the foundation is supported by friction piles in soft clay or plastic silt, an estimate must be made of the ultimate bearing capacity of the pile groups and the load on the groups must not be allowed to exceed one-half, or preferably one-third of the ultimate value. The consequences of ignoring this condition can be catastrophic. In several instances, structures together with the supporting piles and the soil located between the piles have sunk suddenly into the ground, although the load per pile did not exceed the "safe design load". In the CBRI report itself it is stated that "the quality of piling work in some piles was poor to very poor."
87. The CBRI's original proposal to attain at least a load capacity of 8000 tons was revised keeping in view the possibility of attaining 10000 tons capacity. (See Ext. R1(a)(c)). At the same time, the original proposal to test the tank and consequently the foundation with 1.5 times the ammonia load or 15450m of water equivalent to 15450 tons was abandoned and the load was reduced to 11600 tons on the basis of the poor foundation conditions and API standards.
88. Though the CBRI has given a clean certificate as regards the foundation, we find it difficult to accept the certificate from the materials placed before us, since there is no reason for abandoning the original test load of 15450 tons fixed by the CBRI itself to 11600 tons; at the same time increasing the original designed repaired capacity of 8000 tons to 10000 tons on the strength of rapairs made by the CBRI. The Director of CBRI, Shri Dinesh Mohan in his Foreward to the final report, Ext. R. 1(a)(c) has said thus :--
"I am glad that we could measure up to our responsibility. The ships have unloaded ammonia into the tank and that initial water tests have already indicated the soundness of the tank foundation to sustain full ammonia load without any cause of concern."
It is incomprehensible and inscrutable for us how CBRI could give a clean bill is such glowing terms in the foreward to the final report "that initial water tests have already indicated the soundness of the tank foundation". From the foreward of Ext. R1(a)(c), itself, it is clear that what has been done is a difficult job. It is said that the job inhered many elements of uncertainty, but it was accomplished in a record time of 7 months. This certification, of course, is splendid, but, when the court examines the whole process carried on by the CBRI, we find it difficult to accept the certification as proof of the efficiency of the rectification work carried on by the CBRI. Certainly this court is called upon to investigate a more serious and larger question. In investigating the larger question, we are deeply concerned with the absolute safety and soundness of the foundation to bear a tank loaded with 10000 tons of liquid ammonia. We are very much conscious of the fact when we are examining the process of rectification and its final result that the foundation is made for bearing the load of 10000 tons of ammonia, a toxic chemical at -33°c and the consequences of the failure of the tank leading to cataclysmal, ravaging and annihilating results. Perhaps, the foundation may bear the load, but, we have to keep in mind that out of the three options the first respondent has not taken that method which is the safest. The question is how far the whole process would give assurance to this court as to the safety of the foundation when the first respondent has opted for the least expensive and least time consuming method in preference to the safest method. We feel that from the report Ext. R1(a)(b) read with Ext. R1(a)(c), there is nothing to show that the process of the rectifying work has given due and appropriate importance to the high risk element involved in storing a hazardous substance like ammonia on a foundation which was attempted to be rectified initially with a design to rectify it for 8000 tons and finally after rectification using it for 10000 tons. We are also of the view that considering the high potential risk of storing ammonia in the site selected for it, it is difficult for this court to approve the decision of respondent No. 1 to opt the rectification suggested by Dr. Kurt Mager in solution (a) instead of opting solution (c) which is recommended by Dr. Kurt Mager as the safest method. We feel that the first respondent was not fully conscious of the devastating hazard involved in the possibility of the failure of the foundation when it is used for keeping a tank to store a bulk quantity of 10000 tonnes of toxic substance -- ammonia.
89. Regarding the deviation from the original plan of testing, the first respondent has filed an additional affidavit on 25th November, 1993. Quoting paragraph 5 of Ext. R1 (a)(c) that the original plan of testing the tank with water to the expected height of ammonia inside the tank was not considered necessary in view of the provisions of the related API standard. The test water load was limited to a maximum of 11600 tonnes arising corresponding to ammonia storage of 10000 t. The first respondent has produced a true copy of API -- 620 Appendix R as Ext. R 1(a)(i). Appendix R relates to the provisions for guidance for materials design and fabrication of tanks to be used for storage of refrigerated products. R. 1 of Ext. R1(a)(i) deals with the scope of Ext. R. 1(a)(i) and it is stated therein that "the requirements for an API standard 620 tank are superseded by any requirements of this Appendix which differ therefrom. All other requirements for an API standard 620 tank shall apply".
90. Paragraph 9 deals with testing. It reads thus : Provisions under Para R.9.1 are testing requirements for the tank refrigerated by the liquid contents. Provisions under Para.R.9.2 cover the outer tank not in contact with the refrigerated liquid and subjected to a higher temperature approaching atmospheric. In para 9.1 it is stated that a thorough check for tightness and for structural adequacy is essential for a single wall tank or for the inner tank of a double-wall tank. The hydrostatic test shall be completed before application of the insulation. Except as limited by Para. R.9.1, the test shall consist of filling the tank with water to the design liquid level and applying an overload air pressure of 1.25 times the pressure for which the vapor space is designed. Paragraph 9.1.1 provides for limitations and it is stated that where foundation or stress conditions do not permit a test with water to the design liquid level, the height of water shall be limited by the following :
a. The load on the supporting foundation shall preferably not exceed the established allowable bearing value for the tank site. Where a thorough evaluation of the foundation justifies a temporary increase, the established allowable bearing may be increased for the test condition, but not greater than 25 per cent.
b. Maximum fill shall not produce a stress in any part of the tank exceeding 80 per cent of the specified minimum yield strength of the material or 50 per cent of the specified minimum tensilel strength of the material.
Paragraph 9.1.2 deals with the test preliminaries, and paragraph 9.1.3 deals with water filling. Rule 9.1.3.c is relied on by the first respondent. R.9.3.c reads as follows :--"Fill the tank with water to the design liquid level unless height is limited as previously stated". Of course, it is with reference to paragraph 9.1.1 which has already been quoted by us. R. 9 of Ext. R. 1(a)(i) deals with testing of tank and the limitations in R. 9.1.1 also in the context should relate to the testing of the tank. Applying this limitation for the purpose of testing and certifying the safety of the foundation, according to us, cannot be justified.
91. The first respondent submits that the height and consequently the weight of water in the tank for the purpose of testing was determined or limited on this basis. Further in the counter-affidavit it is stated that the limitation in the test load in this manner will not in any way affect the utilisation of the tank to the full capacity of 10000 tonnes.
92. We feel that the CBRI while recommending that the foundation is capable of bearing the load of a 10000 tonnes, they have not seriously taken into account the high risk element involved in the substance to be stored in the tank. We now note on the subject of failure of foundation and rectification that the testing was based on the limitations provided a deviation in the usual test prescribed in paragraph 9.1 on exceptional circumstances. We find it difficult how the experts have ultimately allowed the first respondent to use the tank for 10000 tons without adopting the hydro static tests they themselves prescribed at the outset and resorting to the limitations provided in paragraph 9.1.1 read with 9.1.3 of the API standards, even though the proposal of the rectification was aimed at using the tank only for 8000 tons.
93. In the affidavit filed on 26th November, 1993, the first respondent has produced the copy of the draft circular by the Bureau of Indian Standards relating to design and construction of oil storage tank foundations. Copy of the draft circular is Ext. R1 a(k). It is stated in the affidavit that the draft was circulated for comments and it is not possible yet to ascertain when and whether this was finalised. Paragraph 7 deals with hydro tests. and in paragraph 7.1 it is stated that all liquid steel storage tank shall be tested under a full water load, even though in service they may store liquids of lower specific gravity. This procedure may be used to test the integrity of the tank and will in addition preload the foundation soils. Here the "full water load", we feel, would mean that water is to be up to the level, perhaps, filling with the liquid to be stored, in this case, ammonia, so the total weight should be about 1.5 times the design capacity.
94. We have examined the case, of course, with our own limitations in understanding the engineering expertise used by a renowned expert body on construction of foundations, viz. CBRI. We have to say plainly and clearly that in doing the rectification work all that ought to have been done to ensure and assure the safety of the foundation were not done. We feel that that great safety factor which should have been kept in mind, considering the fact that foundation is made to bear the toad of a hazardous substance, ammonia, was not manifested in doing the rectification work.
95. We have to remember that we are dealing with a case of environmental pollution, which involves a larger dimension of a morbid violation of the fundamental right under Article 21 of the Constitution of India, of all the citizens of Willingdon Island and the City of Cochin and surrounding places. It is contended that survival of the living is menaced by a homicical missile in the form of a 10000 tonnes ammonia tank in a very strategic location.
CLASS ACTION
96. We are dealing with a class action in the sense that the original petition before us is a representative proceeding. Justice for the people collectively can be sought by the people collectively by representative petition. The inevitability of public interest litigation flows from the imperative of social justice under the Constitution. Certainly, jurists and Judges are puzzled by informality excesses committed by some activist judges. We feel that this is a matter of social justice and social justice is a judicial commitment, and issues "succulent with social justice or crying against social justice, brought before the court by people's collectives with Good Samaritan motives and without private incentives should be helped by overlooking procedural laxity and directing amicus curiae assistance or should be warned that procedure is the mistress, not the handmaid, that judges open their jurisdiction to do justice only if forms are fully complied with what happens then is that courts of justice get estranged from the commoners in a country of poverty and law ceases to talk to justice".
97. Details of the rectification work and the reports and other materials were caused to be produced by FACT on our instructions; because of anxiety to know the safety of the foundation. In this regard we did not follow the formality of procedure.
98. Certainly we have to say that counsel for the first respondent placed before us whatever materials that are required for our investigation consciously informed of the great stake involved in the result of this litigation. We certainly appreciate his great thirst for meticulous details and the search for authorities on all points of doubt.
Dr. J.M. Campbell - Commission
99. This Court thought of appointing a commission to investigate the locational hazard and the potent danger involved in the continuance of the storage tank. In a very detailed order dated 19th September, 1989, this Court appointed Dr. J. M. Campbell of the United Kingdom and Dr. S. Varadarajan, Pandara Road, New Delhi as commissioners. Dr. J. M. Campbell is a scientist suggested by the International Union of Conservation of Nature and Natural Resources, Geneva. This agency enjoys United Nations' consultative status. The Commissioners appointed have got international fame and status and are supposed to be environmental experts. In appointing the commissioners the court observed that it is indiscrete for the court which does not possess expertise to circumscribe the actions of the experts. Nevertheless, the court thought it fit to express its first impression. Court said that it has to be remembered that M/s. Cremer and Warner have already studied the matter and prepared a report and that follow up actions have been taken as suggested by M/s. Cremer and Warner Limited, at the time when this petition was filed. Further this Court observed that the primary data and the materials available in the report of M/s. Cremer and Warner Limited may obviate the necessity for fresh physical investigation at least in certain areas. The court also observed that it is for the experts to evaluate the same and modulate their action. The Court also observed that the experts can undertake the work singly or jointly, individually or collectively and that would be a matter for a meaningful dialogue between them and careful planning about their actions.
100. One of the experts did not do anything substantially. The other expert, viz., Dr. J. M. Campbell has submitted three reports, dated 16th May, 1990, 28th August, 1990 and 22-1-1991, In the report of Dr. Campbell dated 16th May, 1990, he has said very plainly that it is confusing to read the vast amount of information submitted in affidavits and supporting material relating to such features as air quality, the operational characteristics of FACT'S Willingdon Island installation, and environmental criteria and standards for limiting ammonia concentration. He has said that these are irrelevant when it comes to assessing the risk of catastrophic failure.
101. At the outset itself he has addressed to the question that the existing location of the large scale ammonia storage tank which must be considered less than satisfactory, being in the centre of a major urban area, and which made complicated by the pressure of stretches of coastal water-way such as the Mattancherry Canal. Expert observed that the respondents have tended to reply to the petitioner's case along the lines of commitment to both design and operation minimising any loss of ammonia to atmosphere from the facility which would otherwise take place if the tank construction was unsatisfactory, "procedures lax and staff ill-trained". He adds that in a way this misses the point about the risk of catastrophic failure which would probably be beyond the capability of FACT to influence regardless of their clearly demonstrated commitment.
102. The expert, has studied the report of Cremer and Warner dated 31st August, 1988, in this report it is repeatedly stated that the authors have simply considered the opera-tonal characteristics of the ammonia receiving terminal and not the ultimate risk associated 24 hour round the clock storage. Further the report says that Cremer and Warner have not considered the worst case of a major tank rupture. Dr. Campbell opined that in essence the report has confirmed both the capability of FACT to manage their facility and the integrity of their storage tank based on good original design and subsequent critical inspection. But, the expert addresses a different question by saying that "the ability to contain leakage and relatively small quantities of ammonia loss is not in question", and said that this ability in no way diminishes the perceived major hazard that this large quantity storage of ammonia presents to the surrounding business and residential community. On this aspect of the matter, the expert gives his considered opinion that "if there is minimal risk from operational accidents, what other events on site could indeed result in catastrophic rupture" and said that the case has to be considered by focussing attention on site security (sabotage), extreme weather conditions, seismicity and aircraft accidents. Further he said that the above factors have received scant attention. He also said that he has no data to describe the nature of aircraft movements at the airport on Willingdon Island, the airspace directional control facilities or flightpaths etc. The location of the airport must be considered as a significant additional risk factor. He has also said that "It is well recognised in aviation that take off and landing represent the greatest risk of accident in flying."
103. In the report, Dr. Campbell has referred to the calculations made by FACT on "worst case scenarios"; but he has said that he has not got the details. However, he has given his views:
Siting:
104. The suggestion of relocation at Vallarpadom, the expert considered and said that the conslutants of FACT themselves have stated that relocation at Vallarpadom would be ill-advised because of day time wind direction. However, we are not very much concerned about the relocation of the tank at Vallarpadom. As regards this relocation, Dr. Campbell has said that this relocation at Vallarpadom takes into account the operational characteristics and not a 24 hour storage viability consideration under all wind conditions. Further, he said that the report after all reveals a change in wind direction, characteristics from day to night, as would be expected in a warm climate coastal position. Ultimately he said that the reduction of risk at the existing Willingdon Island facility has to be viewed as a compromise situation and would require a detailed study of the air port operation and its implications for the FACT ammonia storge facility. He has referred to the danger involved in overflying which we are told, cannot happen because the concerned authorities have taken note of it and proper signal facilities have been provided for avoiding flying over the storage tank.
105. Dr. Campbell further deals with emergency plans and said that the existing draft emergency plan addresses major leaks rather than catastrophic loss of ammonia vapour. Ultimately, the expert comes to the question of the best solution and said that the obvious solution of removing the entire risk is ammonia production at the fertiliser plant itself. In regard to this aspect, he has said that if this proposal amounts to more than a paper commitment and can be demonstrated to represent an actual project rather than a long term concept, then the existing storage installation could remain providing studies and the strategies proposed earlier are still carried out with the aim of minimising risk. Under these circumstances, a timescale could be stipulated, say three or four years maximum. Finally he said that all the evidence points to the ability of FACT to operate their Willingdon Island facility to a high degree of competence and reliability with good, well trained staff and procedures. Notwithstanding this there remains the risk of catastrophic failure which is generally outside the everyday capability of the company to control.
106. This report also deals with the leakage and loss of ammonia vapour in the region and its influence on air quality. The report also deals with the fog formation and it is said that in the report dated 25th February, there is extensive reporting in the scientific literature of the role of ammonia in forming solid participate and liquid droplet atmospheric aerosols with other chemical media such as acid droplets and sulphur dioxide. He has said that the resultant chemial smoke fogs have been identified as being present in an industrial area in the north of England.
107. As regards the question of fog formation, though extensive arguments have been advanced, we think that we can dispose of that by referring to the dates given by the State Pollution Control Board and the reports given by NEERI, marked as Exts. XI and X2, which we will be doing after considering the question we are now discussing viz., potential danger of allowing the storage tank in the existing site.
108. Dr. J.M. Campbell has given a final report. It is dated 22-1-1991. In the final report, he has said that he has not much to say except to give a digest of the contents of his two earlier reports. In fact, the final report is almost identical to the report we have referred to. The conclusion is also identical to the conclusions reached by him in his report dated 15th May, 1990. As regards the catastrophic failure and the siting of the storage tank in the present location, the final report also suggests that a plant for production of ammonia at Udyogamandal is the only solution to avoid catastrophic risk element involved in the continuance of the storage tank at Willingdon Island.
109. When we have referred to the report of Dr. Campbell, we are obliged to note the objections filed by the first respondent to the report. In the objection, the first respondent has said that the final report is only virtually a replica of what has been said in the report dated 16th May, 1990. We agree with this statement of the first respondent. The main objection focussed on the statement by Dr. Campbell in his report that: "On a more general note I should make the point that although the papers received have provided a sound basis for an initial assessment, I have intentionally avoided commenting on the details of these documents. I trust the High Court of Kerala will obtain a further under-
standing of what 1 see as the central issue of this cases." The first respondent has submitted that "the final report has not only gone beyond this, but the above extract appears as the last paragraph of his final report also". It is stated in the objection that the final report has not taken into account most of the material or information supplied to Dr. Campbell after he wrote the letter dated 16th May, 1990 though there is a cursory reference to certain of these documents, but at the same time reiterating that these have not been furnished to him. The further attack of the report is that Dr. Campbell has taken the main issue as catastrophic failure of the tank. It is objected very seriously that Dr. Campbell assumed that M/s. Cremer and Warner considered only the direction of wind during day time. According to the first respondent, Dr. Campbell has made an assumption regarding wind direction. Summary of the conclusions of Cremer and Warner reads as follows: "Due to the day time predominant wind direction from the north-west most releases will blow over the aerodrome which has a low population density. Moving the tank to the reclaimed land north of Willingdon Island would essentially give a high probability of the whole of Cochin being downwind of any incident and would therefore be ill-advised."
110. The first respondent submits that the above conclusions of M/s. Cremer and Warner was with reference to the suggestion of relocating the tank at Vallarpadom. In fact, in the report of Cremer & Warner itself in paragraph 12.1 under the heading "Meteorological and Topographical Data", it is stated thus:
"Tables 12.1.1 and 12.1.2 summarise the percentage occurrence of winds in certain directions based on 30 years observations up to 1982. As can be seen the wind blows predominantly form the West and North-west during the day shifting to the North-east and East at night and into the morning. Occasionally the wind will blow from the southwest and south-east, day and night respectively, but winds appear to stay mainly in the northern half of the wind rose."
Certainly from the above quote, it is clear that M/s. Cremer & Warner has considered not only the wind direction during day time, but also during night. But we would say that the question of wind direction may not assume very great significance in this case, since we are also of opinion that the main issue to be decided in this case is the consequence of catastrophic failure like major leak or rupture of the tank.
111. It has to be noted that after studying the report of M/'s. Cremer & Warner and other materials supplied to Dr. Campbell, he has said that all the evidence points to the ability of FACT to operate their Willingdon Island facility to a high degree of competence and reliability with good, well trained staff and procedures. After stating so, Dr. Campbell said: "Notwithstanding this there remains the risk of catastrophic failure which is generally outside he everyday capability of the Company to control."
112. It is further submitted by the first respondent in its objection that Dr. Campbell has gone wrong in assuming that ammonia is unloaded from ships and also loaded into rail wagons or barges only during day time. Again in the objection, the first respondent has referred to 12 failure release cases that are related to hazop survey of operational characteristics and procedures and the statement that they cannot be considered representative of the worst case considerations such as major tank rupture, are not correct. According to the first respondent, the 12 failure release cases include all the three worst case scenarios considered by M/s. Cremer & Warner prior to their visit and incorporated in their report. In fact, this forms part of the report and is seen in table 12.2 at page 40 and table 12.5 at page 44 of the report (M/s. Cremer and Warner). The first-respondent submits that M/s. Cremer & Warner also has considered three worst case scenarios and it is unjustifiable on the part of Dr. Campbell to say that M/s. Cremer & Warner has not considered the three worst case scenarios. Certainly, Dr. Campbell's report itself shows that a careful study has been made on hazop survey taking into account all cases of worst scenarios also. This is evident from what is quoted below from Dr. Campbell's report itself :
"So in essence we have in our possession extensive reports confirming both the capacity of FACT to manage their facility and the integrity of their storage tank based on good original design and subsequent critical inspection. The ability to contain leakage and relatively small quantities of ammonia loss is not in question."
113. Though the submission made against the report of Dr. Campbell cannot be ignored totally, on the whole, we feel that legitimately we can place reliance on the opinion expressed by Dr. Campbell in his report on certain matters. The attack that Dr. Campbell has not studied the report of M/s. Cremer & Warner very carefully may have some basis from what is highlighted in the objection filed by the first respondent. Nevertheless, on a vital issue if we accept the report of Dr. Campbell as an expert opinion we have to consider his report very seriously for arriving at a decision in this case.
Reports of I.I.T.
114. Now, we shall deal with the report of. the I.I.T., Madras dated 17-6-1985. This report contains the assessment of the soundness of the foundation of ammonia storage tank. A team of experts visited the site, held discussions with FACT Engineers and officers and conducted a study. They had the copy of the earlier report submitted by CBRI, Roorkee. The IIT was provided with level measurements taken by FACT Civil Engineering team. It is stated in the report that on going through the levels taken by FACT on 4-5-1985 with a load of 3935 tonnes, it was found that points 1, 2, 3, 25, 26 and 27 experienced maximum sttlement of about 70 mm. Further it is stated that the same points are reported to have experienced a settlement of about 55 mm when the load was 6020 tonnes on 30-4-1985. It is significant to note that the IIT has said that they had reservations about these readings on two accounts. First of all it is clear from the readings that the settlement is not a total settlement since it is not linear across the cross section of the tank. Hence it could be differential settlement. Further it is stated that if it is differential settlement of this order, then there should have been visible distress in such a rigid foundation, which is not there. They say that there is an apparent mistake in the readings. The second point stressed is that the settlement is found to be more with less load which cannot also be explained. They said that on these two counts there seemed to be some mistakes in the earlier reading. But strangely they did not make an attempt to take their own readings even though they doubted the correctness of the reading given by the FACT. This one aspect itself generates in our mind a deep shadow of mistrust and misgiving about the dependability of the report.
115. In paragraph 2 of their report, they say that it was found that most of the columns had corroded ties. Reinforcements of some of the columns which did not show any sign of corrosion externally were exposed and it was found that many of them were also corroded. This is mainly due to inadequate cover and poor concrete. They further said that similarly many of the beams are also cracked because of the corrosion of reinforcements. They said that as in the case of columns, the reason for corrosion is inadequate cover and poor concrete. In paragraph 3 of the report, the IIT has reported that it was found that 'there is no seepage' of water into most of the pits except into a few pits near the centre. Even in those pits, seepage of water is negligibly small in quantity. The grade of concrete which was used in the construction was reported in the CBRI report at 200 kg/cm2. Of course, considering the possible over strength and ageing, the expected strength should have been about 250 kg/cm2. However, the test results show only an average strength of 190 kg/cm2. In regard to seepage of water, the report indicated that there is seepage of water into pits near the centre of the inverted dome foundation of the tank. During the first visit of the IIT team it was decided to check whether realty the water was seeping into the pit or whether it was due to collection of water condensed from the tank bottom slab. They emptied the pits and wiped by using gunny bags. Then it was found that water was indeed seeping into the pits. It is stated that flow was so small that hardly a litre of water was collected in 24 hours time. Water samples from these pits were collected to carry out chemical analysis. The result of the analysis is given in the report. From the table, it is clear that the water collected from the pits of the tank foundation contains chlorides as large as 8875 ppm showing that it is sea water that is seeping into the tank. The sulphate content is also quite high. This shows that the sea water is seeping into the pit and that it can happen only if the water proofing layer provided below the foundation became at least partly ineffective and the concrete in the raft is quite porous. It was found that the steel in the raft is corroded and they reported that if this state is allowed to continue long, there will be further accelerated corrosion of steel and the consequent fast deterioration of the foundation. They have suggested that it is necessary to pressure grout the bottom raft with apoxy, if possible so that the whole concrete will become impervious. Ultimately they said that there is deterioration in the quality of concrete with times even though the indicated strength at present is only just below the target strength. The conclusion is interesting they say that structure is not in an alarming state as far as strength is concerned. They suggested that a protective coating should be provided to arrest further deterioration of concrete and said that it will ensure continued structural integrity of the foundation.
116. Of course, in conclusion, they have said that "The foundation as exists now is quite capable of carrying the expected load of 10,000 tonnes of ammonia without any structural distress.2. However, the column reinforcements and the reinforcements in the ribs of the inverted dome show signs of corrosions, mainly due to inadequate cover at many places. This is especially critical because of the marine atmosphere here due to the proximity of the tank to the back waters. Unless this trend is arrested, there will be further deterioration of the structure which could lead to structural distress in future. For this the columns, ribs, the top slab and the base raft have to be provided with a protective coat; details of which are discussed. 3. There is ingress of salt water (sea water) into the foundation pits through seepage from bottom. This will lead to further corrosion of steel and the consequent degradation of concrete in the raft slab of the inverted dome. To arrest the ingress of salt water into the pits, an apoxy pressure grout is recommended. Once these repair works are successfully completed, it can be assumed that the structure is quite safe, say for another 10-15 years."
117. Though the IIT team is an expert, we find it impossible to discern anygood reason from the report, for the finding that the foundation is quite capable of carrying the expected load of 10,000 tonnes of ammonia. It is important to note that the fianl verdict of the IIT is that the structure is quite safe say for another 10 to 15 years. It has to be remembered that it is only an estimate. Even the 10 years stated cannot be taken as certain, since the words used are "say for another 10-15 years". These words echo a casualness, a slapdash and slovenliness. It also puts the report under the shadow of a feeling in our mind, that the report is tainted with indifference and perfunctoriness. Is the report the result of a bad job or sad work?
118. The report was given in 1985. It has to be noted that they have earlier stated that the structure is not in an alarming state as far as strength is concerned. The comment made by the team that 'structure is not in an alarming state' does not give any comfort to this court, when we think about the devastating consequence, viz. annihilation of the entire population of Cochin City and nearby place in the event of failure of the foundation. Further, we feel that although repair works are suggested to prevent further deterioration, the process of corrosion could continue with the ingress of salt water. Considering the hazards involved in this particular case, we are of opinion that though the team who inspected the foundation to report the soundness of the foundation, assumed a healthy life for 10 to 15 years, we find it difficult to accept it.
119. The I.I.T. has made another assessment of the soundness of the foundation of the ammonia storage tank and the report is dated 6-3-1986 marked as Ext. R1a(o). In this report also they have stated that "there are signs of deterioration of the materials, i.e. deterioration of concrete and corrosion of steel reinforcement. To arrest this trend and also to make the structure capable of carrying the load safely, say for another 10 to 15 years, certain repair measures have been suggested. In the second inspection, after decommissioning of the tank the team of experts decided to carry out water load test before filling the tank once again with ammonia. The water load test was carried out between the period 1-2-1986 to 22-2-1986. The team of I.I.T. monitor the performance of the foundation of the tank during the entire period of water load test. But it is seen that: "Final readings were taken when the weight of water in the tank was 10,000 tonnes." It is stated that this load of 10,000 tonnes was maintained constant for 24 hours and they have recorded a set of level measurements at the end of 24 hours. The report says that "from the graphs it is observed that the settlement increase rapidly at the initial stages of loading, say upto about 4000 tonnes. Subsequently there is practically no settlement for some points. In fact some points showed a reduction in settlement on loading beyond 4000 tonnes and certain points experienced increased settlements. Similar type of behaviour had been noticed during first ammonia loading after the repairing as directed by CBRI. The variations of settlement is the circumstantial direction for various loads are shown in fig. 14. From the figure, it can be seen that the points C and D experienced a settlement only about 1 mm and the diametrically opposite points GHI and J experienced a settlement of about 42 mm at a load of 400 tonnes. In subsequent loading it can be seen that the settlements around the points C and D experienced an increased settlement of the order of about 12 mm while the diametrically opposite points, H, I and K experienced a reduction in settlement, again by the same order of 12 mm. This shows that there is a redistribution of load transfer from the foundation system when the load is increased beyond 4000 tonnes to 10,000 tonnes which in fact is advantageous to the structure, making it to attain a more uniform settlement. The maximum settlement observed was 42 mm at a load of 4,000 tonnes ..... The maximum settlement under a load of 10,000 tonnes was about 35mm." The conclusions are stated thus : "This water load test indicates that the foundation structure as it exists now is safe to carry a load of 10,000 tonnes. The settlements observed at all stages of loading including the maximum load of 10,000 tonnes were of the same order as was observed during the load test in 1976 immediately after repairs. This proves that the remedial measures undertaken during the repair in 1976 like the buoyancy effect etc. continue to be effective with same efficiency even now. However, to prevent further deterioration of the materials of the foundation as indicated in our Report II, the remedial measures suggested therein should be carried out."
120. It has to be noted that the maximum water load for which the IIT team conducted the test was 10,000 tonnes only. There should have been safety factor over the test load when the facility is certified for 10,000 tonnes. We are of opinion that for a facility involving storage of hazardous substance to the extent of 10,000 tonnes an allowance should have been given for various factors including earthquake usually considered by the experts in the case of dams and such other structures carrying substance of high potential risk. After allowing for earth-quake factor a sufficient margin of safety on the test load of 10,000 tonnes ought to have been given by the IIT team experts when they have opined healthy life of 10 to 15 years from the foundation.
Report of M/s. Cremer & Warner :
121. On 31-8-1988 a safety audit of the storage tank was prepared by M/s. Cremer & Warner. This is a very lengthy report. It is marked as Ext.R1(h). Cremer & Warner are consulting engineers and scientists, having their office at London. From the summary of the report, it can be seen that the safety audit was split into 4 phases of work : (a) receipt and study of documentation, (b) hazard identification at site, (c) assessment of procedures, training, safety measures and emergency plans and (d) quantification of releases and report writing.
122. As regards the structure of the tank it is concluded in the report that "The 10,000 tonnes ammonia tank on Willingdon Island, Cochin was decommissioned and inspected by TUV of Germany in 1986 and on this basis CWL are satisfied that the structure of the tank continues to be up to the high standards to which it was built, i.e., API 620R".
123. They have certified that the FACT have a well established control system for modifications to the plant, calling in aid Uhde India Limited and Lloyd's inspection to ensure that safety design standards have been met. Further, they said that in general maintenance was good, but continued attention will be required to ensure high standards are maintained. Particular attention should be paid to corrosion of pipe supports and cable brackets.
124. They have discussed the con sequences of releases in Section 12.5. They said that: "Generally the frequencies shown in Table 12.5 are as would be expected in an European plant of this type. The frequencies calculated assume that shut-off takes 5 minutes. Due to low pressures in the main liquid lines automatic shut-off may not be possible. However, the use of walkie-talkies on the jetty would increase the speed with which the control room could be notified of an incident". They have made certain recommendations in Section 3.0 for more safety.
They have said that due to the day time predominant wind direction from the north west most releases will blow over the aerodrome which has a low population density.
Further they opined that moving the tank to the reclaimed land north of Willingdon Island would essentially give a high probability of the whole of Cochin being downwind of any incident and would therefore be ill-advised.
Section 3.0 recommendations in the report is for improving the safety of the plant in the event of a release. They have said that none of the recommendations are imperative but all should be considered to see if they are reason ably possible.
Table 3.0 -- distances (metres) to concentration levels:
"Concentration Weather category Level (ppm) 1 m/s F 3 m/s D 7 m/s D 10,000 698 92 39 5,000 1,102 178 79 2,000 1,994 339 188 500 4,925 780 473"
Table 3 of Ext.R-1(H) indicates the concentration level in ppm and the distances it would reach with the concentration levels. In the report it is said that these are significant reductions on the unbunded case which would be even further emphasised if a longer duration of release had been considered. The benefits, in terms of consequence limitation, can, therefore easily be seen for limiting the spread of liquid ammonia in the event of a release by means of 2 foot high bunding, kerbing, or installation of a ramp and should be considered. As regards this suggestion, the first respondent has said that the company has complied with the recommendation in the report.
125. The report further noted that during the ship unloading, granulated sulphur was found on the jetty and that invites a potential hazard and it is instructed that this should be avoided in future. The report directed its attention to the corrosion problems inherent on account of the special site. A list of items requiring attention has been given in Section 11.2. Cremer and Warner reported that they do not consider that there was any item on the plant that would currently lead to a dangerous situation or incident, but cautioned that action is required to prevent any further deterioration of pipe supports and carbon steel pipework.
126. Now, we shall refer to Phase I of the work done by Cremer and Warner. In Phase II, a course HAZOP was carried out and the minutes taken by the HAZOP/ HAZAN expert. 12 possible failure cases resulting out of this study were considered, which would present the most likely hazardous incidents that would occur. These 12 cases were selected following the HAZOP study which spanned three, four hour sessions and consisted of eleven tables. The HAZOP was used to identify the possible areas in which leaks could occur and to clarify the likely response to the incident. Questions raised included:
(a) How could the release be noticed?
(b) Could the release be stemmed by operator intervention?
(c) Would any action taken be local to the release or by remote control?
(d) What containment is there for a pool of liquid?
127. In the report itself they have said that from the answer to these questions, asked within the framework of the HAZOP method, estimates could be made of the severity of the release, i.e., pool size for liquid release, duration of release and frequency of the incident occurring. The 12 cases identified were:--
(a) Break in discharge line from 1st stage of pressure holding compressor.
(b) Break in discharge line from 1st stage of ship unloading compressor.
(c) Break in discharge line from 2nd stage of pressure holding compressor.
(d) Break in discharge line from 2nd stage of ship unloading compressor.
(e) Tube failure in ammonia condenser.
(f) Ammonia receiver liquid outlet line failure.
(g) Flash vessel liquid outlet line failure,
(h) Saturator drain line failure.
(i) Failure of liquid line from storage tank to loading pump (after control valve).
(j) Failure of discharge line of tank loading pump.
(k) Failure of ship unloading arm -- spill into sea.
(l) Failure of line from ship to tank --'spill into concrete.
128. It is significant to note that the HAZOP raised no major questions of catastrophic failure of the tank. It is the view of Cremer and Warner Ltd. that all reasonable precautions have been taken in the design of the plant and are being taken in its operation. In the report it is stated that the major problem which the site has to contend with is corrosion from the salt laden sea air. In the report it is stated that every effort is made to maintain the plant to the international standards to which it was built. The study then noted that there are some signs of advanced corrosion and they are listed and instructed immediate attention. The listed areas of corrosion are these:--
(a) Bad pitting on fire hydrants.
(b) Cabling brackets corroced on tanker loading platform supports; cables hanging loose liable to damage.
(c) Extensive corrosion to horizontal pipework supplying sea water to cooling tower.
(d) 2 bolts missing from blank on drain line on gas compression pipework.
(e) insulation missing off local level indicator on staturator.
(f) Corrosion of level tappings on flash vessel.
(g) Badly pitted drain valve on line from receiver to flash vessel.
(h) Pitting on staturator and flash vessel supports.
(i) Concrete crumbling around reinforcing bars in condenser supports.
(j) Bolts missing from and flange on water side of condenser.
(k) Cooling water header to condensers very badly corroded.
(i) Piperack footlates badly corroded under tanker loading.
129. There is no serious dispute that the first respondent company has given immediate attention for remedial measures to the cases listed. In Section 12, the report mentions that a number of piping and other items of failure scenarios were chosen as representative of the failures which could occur. These failure cases have been chosen to show the range of release sizes in terms of flow rate for total mass, which could occur. Details are given as analysis of the release cases in the report.
130. Tables 12.1.1 and 12.1.2. summarise the percentage occurrence of winds in certain directions based on 30 years observations up to 1982. The report says that the "wind blows predomiently from the west and northwest during the day shifting to the northeast and east at night and into the morning. Occasionally the wind will blow from the southwest and southeast, day and night respectively, but winds appear to stay mainly in the nothern half of the wind rise." (This part of the report was highlightened at the time of the argument to meet the criticism in Dr. Campbell's report that Cremer and Warner have not taken the wind blows direction night).
131. Cremer and Warner also noted that the ammonia plant is located on an island, hence the upwind topography in all directions is generally flat. Further they noted that there is an aerodrome which borders the plant to the east and south-east. Therefore, a very low surface roughness value which reflects this topography was assumed-for the calculations. The percentage of windspeed is given in at page 368.
TABLE 12.1.1 Percentage Windspeeds 1 km/hr (8.30 hrs.) Month Direction SW W NW N NE E SE E January 4.3 44.5 42.5 4.8 February 2.8 39.9 36.2 6.4 March 5.4 41.5 27.1 5.4 April 6.0 34.5 23.4 7.8 May 3.3 4.6 4.6 23.5 20.1 7.7 1.5 June 4.4 8.0 12.0 18.3 12.0 July 12.6 5.0 9.6 5.9 August 14.1 8.1 13.3 8.1 3.7 September 6.1 11.4 6.9 19.9 13.0 4.5 October 4.0 4.0 4.0 26.0 20.9 10.4 November 2.6 33.0 32.0 10.4 December 1.8 42.0 39.3 4.7 Percentage windspeeds 1 km./hr(I7.30 hrs) is given in Table 12.1.2.
TABLE 12.1.2 Percentage Windspeeds 1 km/hr (17.30 hrs.) Month Direction SW W NW N NE E SE E January 16.0 62.0 18.9
--
--
--
--
--
February 14.0 57.0 27.0
--
--
--
--
--
March 4.6 58.9 33.0 April 5.9 51.0 34.0 May 7.4 36.4 33.8 June 28.8 29.1 2.7 July 7.4 24.5 35.5 4.4 August 3.3 41.5 51.5 September 3.52 32.6 47.6 October 15.8 41.1 26.1 1.6 November 15.9 41.1 19.6 1.5 December 15.2 48.7 19.4
132. In Table 12.2 twelve failure case scenarios in all were analysed and the results are given as downwind dispersion distances to various concentration levels. The flowrates or masses released from the process in the event of the specified failure. Where the duration of the release from the process was less than 30 seconds then the release was generally analysed as an instantaneous release rather than a continuous release. It is significant to note that in the report Cremer and Warner have said that to calculate the actual effect of the releases on the surrounding population it is necessary to consider the duration of exposure of individuals to the concentrations of ammonia as specified in Table 12.2. An indication of the levels of harm which are likely to be suffered can be realised from the information in Table 12.3 which lists the duration of exposure which is required to give 95.50 and 10% fatality at the various concentration values used. These values are derived from C.WL's probit for the toxicity of ammonia. We feel that we must reproduce Table 12.2.
TABLE 12.2 Table 12.2 Dispersion distances to various concentration levels Release case title Flowrate of Masses Whether category Distance to10000 ppm conc.
Distance to5,000 ppm conc.
Distance to2000 ppmconc.
Distance to500 ppmconc.
1 2 3 4 5 6 7a) Pressure holding compressor first stage discharge 800 (Inst.)
1.a/s F
3.a/s D
7.a/s D
b) Ship unloading compressor first stage discharge 800 (Inst.)
1.a/s F
3.a/s D
7.a/s D
c) Pressure holding compressor second stage discharge 800 (Inst.)
1.a/s F
3.a/s D7.a/s D
d) Ship unloading compressor second stage discharge 800 (Inst.)
1.a/s F
3.a/s D7.a/s D
e) condenser tube failure-spill via prench into sea-water 10.9 1163.
1.a/s F
3.a/s D7.a/s D.
f) Ammonia receiver liquid outlet line failure 1800 (Inst.)
1.a/s F
3.a/s D 7.a/s D
g) Flash vessel liquid outlet line failure 800 (Inst.)
1.a/s F
3.a/s D7.a/s D
h) Saturate drain line failure
7. (180.5)
1.a/s F
3.a/s D7.a/s D
i) Storage tank to loading pump line failure (after R&V) 420 (302.5)
1.a/s F
3.a/s D 7.a/s D
j) Loading pump Discharge line failure 11 (300.5)
1.a/s F
3.a/s D7.a/s D
k) Ship unloading ore failure soil into sea-water 200 (120.5)
3.a/s F
3.a/s D 7.a/s D
l) Ship unloading to storage tank line failure 200 (120.5)
1.a/s F
3.a/s D 7.a/s D Table 12.3 duration (minutes) of exposure required for fatality.
TABLE 12.3 Duration (minutes) of Exposure Required for Fatality Concentration Level (ppm) Duration of Exposure for 95% Fatality Duration of Exposure for 50% Fatality Duration of Exposure for 10% Fatality 10,000 120 19 4.8 5,000 (??)120 77 19 2,000 (??)120 (??)120 (??)120 500 (??)120 (??)120 (??)120
133. These analysis made by Cremer and Warner and the results given in the tables were are adverting to, to spotlight and estimate the gravity of the hazard involved in a major leak or a rupture of the tank would cause to the population in the Cochin City and Willingdon Island. In the report it is stated that the duration of exposure value used to calculate the probability of fatality is not always the duration of the release of material from the process. Often it is necessary to adjust this time, particularly for unbunded liquid releases, to allow for the continuous vaporisation from the liquid pool at a steady rate for a greater period of time. The vapourisation rate, however, will be much lower than the release rate in these circumstances. When a release of material forms an instantaneous cloud then the duration of exposure is measured as the length of time taken for the cloud to pass over a particular location. This time varies with distance downwind as the size of the cloud initially expands and then later contracts as the outer edges of the cloud fall below the significant concentration value.
134. In paragraph 12.3, it is stated in the report that the main areas around the plant which are of concern because of possible effects from ammonia releases are the populated area. The centres of population which are considered important for the assessment of potential hazards from this 'site' are listed in Section 12.4 with approximate ranges or distances to each of these areas. The distances to populated areas are given in Table 12.4.
TABLE 12.4 Distances to Populated Areas Populated Centre Direction from the Plant Site Approximate Distances or Range from the site Willingdon Island Industrial, Commercial and Residential Areas North 0 to 2,200 metres Cochin Peninsula Residential Area West and North-West 750 to 2,000+ metres Ernakulam Commercial and Residential Area North-East, East and and South-East 2,000+ metres Airport Buildings South-South-East 2,000 metres Hotel Maharaja North 650 metres Sir Robert Bristow School (Buildings) __________ North 1,200 metres Park East-North- East 300 to 400 metres
135. In 12.5.2 the report indicates that "the analysis of this facility has been carried out in a simplistic manner being confined to consequence analysis of a small number of specific release scenarios and in indication of base failure frequencies. Therefore, only broad conclusions as to the overall risk from the plant to the surrounding population can be drawn." It is stated that ship unloading failures, from both the loading arm and the piping, present events of high consequences. In the case of piping failures trenching or building to confine a spill would help in reducing the dispersion distances by limiting the rate of boil off from the liquid pool. However, for loading arm failures where the release is almost certain to spill into the sea very little can be done to limit the spread of liquid ammonia across the surface of water. The report cautions that it is important to inspect and maintain the loading arms to keep the likelihood of failures to an absolute minimum especially checking the quick release shut off couplings.
136. It has to be noted that the company is fully aware of the hazards involved in this matter and whatever precautions that are possible, are being taken in the light of the report of Cremer and Warner. On this aspect, the report points out generally the risks from this plant would not appear to affect the surrounding population to a significant degree from the simplistic point of view that has been carried out. It has to be noted that the report instructed that reduction of the potential effects of some of the release cases can be achieved by the use of automatic shut off facilities. They have suggested containment of the spill, and boil off rate will reduce the distance, the cloud travel and hence the risk to the local population. Further, they have suggested that the use of comprehensive inspection, testing, and maintenance routes will help in minimising the likelihood of any failures leading to release of ammonia, and, therefore, these procedures should continue to be carried out on a regular scheduled basis with a periodic review of maintenance frequencies.
137. The report gives the HAZOP worksheets. The voluminous HAZOP worksheet, we are not adverting to. There is an observation in the report in Appendix 2 that the current annual inspection programme appears to be quite adequate to ensure safety of the installation.
138. Cremer and Warner have relied on an earlier inspection report of TUV Rheinisch-Westfalischer Technischer Uber-wachung-Verein e.v. for the purpose of safety account of the storage tank. When the outer layers of the Thermocole insulation of the tank slipped in 1985, the first respondent took immediate steps to provide clamping arrangement to prevent further slippage and M/s. TUV, a West German expert firm was called in to check the thickness of the tank shell to ensure that the tank shell has not been affected and that the defect was limited to the insulation only. TUV inspected the tank between December, 1985 and April 1986 and submitted a report.
REPORT OF TUV
139. This report is dated April 7, 1986. It is marked as Ext. R1(j). In the introduction of this report, it is stated that FACT thought it fit after approximately 9 years of operation, to decommission the tank system, and prepare it for the first general inspection. TUV conducted the tests during the period January 13 to March 10, 1986. The report contains all results of inspections performed during this period. They have conducted the inspection on the outer tank, outer tank bottom and bottom annular ring. In respect of the bottom annular ring of the tank, the report says that after removal of the insulation, the bottom annularring was inspected visually from the outside and the annular space. On the outside, minor to medium corrosion and pitting was found. In the annular space the plates were in good condition; and there was evidence of only minor corrosion from the erection and commissioning period. In paragraph 2.3.1, the report shows that minor to medium corrosion/pitting was found distributed over the roof plates, except in the nozzle area underneath the platform, where heavy corrosion was found. Of course, it is stated that a large number of roof plates displayed no corrosion.
140. In paragraph.2.3.2 it is stated that all roof nozzles were inspected visually. Extensive corrosion was found in the upper part of the nozzle necks and the flanges. Because of this extensive corrosion, these parts were renewed for the nozzles. In paragraph 3.1.2 dealing with bottom center, it is stated that the bottom center was inspected visually and found to be in good condition. All bottom T-joints were checked by vacuum test with soap solution. The vacuum was 3 psi. No leakage was also found.
141. The TUV has conducted a pneumatic test of the outer tank. It was conducted on March 10, 1986. It is stated that the purpose of this was to check the repaired area. Further it is stated that it was agreed by FACT, UIL, and the inspector to limit the test pressure with 1,1 times design pressure = 880 mm water column. The repaired and renewed components were checked with soap solution by 800 mm water column. We do not know why the test was limited with the test pressure with 1,1 times design pressure. The report concludes thus:
"After completion of the insulation work, installation of the complete safety equipment and connection to the piping system, there is nothing to prevent recommissioning of the tank."
142. We have now referred to the two reports, the report of Cremer and Warner Ltd. (Ext. Rl(h)) and the report of TUV (Ext. R l(j)). We have only adverted to certain aspects from the reports which we thought relevant in the context of this case. It is stated in the further statement filed by the first respondent that pursuant to the order of this Court dated 29th November, 1989, that the thermocole insulation was replaced with a superior cast-in-situ polyurethane foam insulation elmninating all chances of insulation slippage in future.
143. It has to be noted that these reports will only ensure and give us a safety audit in regard to the safety of the tank and the contingency measures taken by the Company in the management and operation of the storage tank obviously excluding in their investigation a contingency of a major leak by a break, crack or rupture of the tank. Further we feel that we cannot rely on these reports for the purpose of assuring safety of the foundation. These reports will not help us to say that the first respondent-Company has an effective contingency arrangement for a major leak or a rupture or a crak leading to the flow of ammonia from the tank as a result of the failure of the foundation. The bunding suggested in the report is to contain only spills of ammonia during the operation of loading and unloading and the management of the tank.
144. Certainly an air accident may cause a break or a rupture of the tank and a possibility of a burst of the ammonia contained in the tank. In such a situation it is impossible to have any safety measures to save the lives of the people in the Willingdon Island and in Cochin city. The report would show a minor occasional leak of ammonia will not be a serious hazard potential. But a catastrophic failure of the foundation or a rupture or break of the tank on account of natural or other catastrophic calamities cannot be warded off by the contingency measures built in by the first respondent-company. This high potential hazard can only be avoided if effective measures are taken to eliminate or minimise the natural or other catastrophic failures.
REPORT OF THE TASK FORCE:
145. Now we may refer to the report prepared by the Committee constituted to prepare a contingency plan. This report is seen in the file marked Ext. 7(a). The District Collector convened a meeting on 23-4-1985 for the purpose of preparing a contingency plant. The committee constituted consisted of the representatives of Indian Navy, Cochin Port Trust, Southern Railway, Civil Aviation Department, District Police Superintendent, District Fire Force Department, District Health Department NEERI and FACT. There were ten members in the committee. The committee met four times on 28-5-1985, 28-6-1985, 4-7-1985 and 15-11-1985. The committee in its final sitting on 15th November, 1985 decided to present a report to the District Collector. It is stated in the report that the committee has come to the conclusion that the present location of FACT Ammonia storage poses a danger to the population at Willingdon Island including the Navy, Cochin Port and Air Port establishments, and therefore it should be shifted to a safer location. From the report it can be seen that the committee also considered the possibility of major leaks on account of air crash in the vicinity of tank or by sabotage. It has to be noted that even though the committee recommended the shifting of the tank to a safer location and there was an active consideration of shifting the tank to. Vallar-padom, from the statements of the first respondent itself, it is seen that the scheme of shifting the tank to Vallarpadom was dropped.
146. In the minutes of the meeting held by Chief Secretary at 4 p.m. on 11-8-1986, the Chief Secretary enquiring about the recommendations contained in the report of the task force constituted by the District Collector already referred to noted that the task force which examined the question of preparing a contingency plan to be put into operation if required, to deal with likely leakage from the FACT ammonia tank at Willingdon Island, was not composed of experts. It is observed in the minutes that the task force has clearly recommended that the tank should be shifted from its present location to a more isolated safer location. The task force has further recommended that periodically the ammonia tank should be got inspected by external experts who should certify that all safety requirements are being observed. The question of prescribing safery standards for the tank the Secretary noted the suggestion that experts must periodically inspect the tank and ccertify its suitability from the point of view of safety. It was suggested that an international expert agency should be invited to inspect the tank from time to time and furnish necessary safety certificate.
REPORT OF NEERI
147. Now we may refer to the report of Neeri in regard to the pollution aspect of the case. In fact Neeri was directed to submit a report on Air Pollution by the order of this Court on O.P. No. 6041/81 on 28th June, 1988. The order directed Neeri to report after investigation, the existence of impure atmosphere and smog type conditions in the industrial belt of Eloor and Alwaye, Ambalamugal and Willingdon Island and that any other adjacent area where there is possibility of existence of health hazard also should be included in the study. Further Neeri was directed to furnish data and other information in relation to the intensity of air pollution at different points and in the surroundings of different industrial establishments. Neeri was directed to report whether any remedial arrangements have been made in any of the industrial establishments including FACT Cochin, Oil Refinery, and TCC Udyogamandal. Need was directed to suggest the measures to be taken to ensure the availability of clean air in accordance with the standards and the emissions norms envisaged under Air Prevention and Control of Pollution Act, 1981. The report of Neeri submitted before this Court in O.P. No. 6041 of 1981 is marked in this case as Ext. XI.
148. Neeri has observed in paragraph 2.0 of the report that in order to investigate into the impure atmosphere in the industrial area comprising of Cochin city, Industrial belt of Eloor, Alwaye, Ambalamugal and Willing-don Island, Neeri planned the objectives of the study in the following terms :--
i. to investigate into the impure atmosphere in the industrial area comprising of Cochin City, industrial belt of Eloor, Alwaye, Ambalamugal and Willingdon Island.
ii. To investigate into the existence of the smog like phenomenon in the region.
iii. To generate the status data on the intensity of air pollution at different points covering various areas of Cochin region.
iv. To study the plant processes and emissions from various point sources including the performance efficiency of remedial measurements existing in FACT Cochin and Udyogmandal Divisions, Cochin Oil Refinery and TCC being the major respondents.
v. To suggest whether the existing control measures are adequate or if any additional mitigation measures are required for major point sources in order to ensure the availability of clean air in accordance with the standards.
149. From the above objectives, it is possible to note that Neeri was not investigating particularly the Air Pollution if any caused by the storage tank. In paragraph 3.1 the report indicates the study of frequency of wind. It is stated that the study of wind rises showed relatively more calm frequency and strong winds during day time and light winds during night time. Further, during most of the time of year, westerly winds during day period and northeasterly winds during night time are the dominant features of the Cochin region. Cochin region falls within the lowland and midland regions. The lowlands which form the western portion of the region comprise of backwaters and lagoons. The midlands lying east of the lowlands have natural drainage. As a whole the land slopes down from east to west. Willingdon Island, where the storage tank is installed was formed, by the reclamation of the soil dredged from the backwaters during the construction of the port. The Arabian Sea borders the region on the west and the sea board is an unbroken stretch of Sand except in portions where the backwaters joins the sea, locally called as Azhi. The report indicates that Neeri has adverted its attention to:--
i. Regular Ambient Air Quality Monitor ing.
ii. Emission inventory for various industries in the region.
iii. Study of the smog phenomenon.
iv. Stack emission monitoring for major respondents.
v. To identify other point and area sources.
vi. To suggest the additional mitigation measures to be taken to ensure the availability of clean air in accordance with standards for major point sources.
150. In Table 37 at page 57 of the report, Ambient Air Quality Status of NH3 : Monsoon 19888 Hrs....Avg. Unit: ug/m3 is given. We are extracting the table.
Table 37: Ambient Air Quality Satus of NH3: Monsoon 1988 8 Hrs. Avg. Unit : ug/m3 S. No. Sampling Location Percentile Avg Range 10 30 50 70 90 95
1. Sewage Pumping Station 34 (5-160) 5 5 19 28 77 145
2. PHED Camp. Shed Pachalam 15 (5-54) 5 5 9 18 39 40
3. GCDA, Kadavantra 27 (5-67) 5 7 20
4) 51 58
4. NEERI, Palarivattam 20 (5-97) 5 5 6 16 63 85
5. Thripunithura 32 (5-149) 5 5 18 39 65 89
6. Thiruvankulam 39 (5-208) 5 7 20 28 139 147
7. Karimugal 18 (5-92) 5 5 5 23 45 50
8. Ambalmugal 39 (5-236) 5 7 16 31 75 163
9. Thiruvaniyur 25 (5-82) 5 6 19 28 54 68
10. Thrikkakara 25 (5-65) 5 10 21 35 51 65
11. Kalamassery 20 (549) 5 5 13 29 43 48
12. Cheranellor 23 (5-95) 5 5 12 27 50 60
13. FACT Eloor 204 (9-907) 16 48 80 192 508 829
14. Binanipuram 28 (5-121) 5 8 14 18 98 105
15. Alwaye 22 (5-53) 5 11 22 28 40 41
16. Willingdon island 77 (20-144) 26 44 57 127 144 144
17. Mattenchery 23 (5-105) 5 6 15 24 39 71
18. Eloor 80 (18-211) 30 35 53 120 159 211
19. Mulavukad 51 (7-100) 7 18 74 75 100 100
20. Elakunnapuzha 38 (5-93) 5 5 32 52 93 93 There were 20 sample locations. Willingdon Island is also one among the sample locations. The date given in Willingdon Island is Willingdon Island 77(20-144) 26 44 57 127 144 144 144 The same details are given in regard to Winter 1988 in Table 38. We are extracting Table 38.
Table 38 : Ambient Air Quality Status of NH3 : Winter 1988 8 Hrs. Avg. Unit : ug/m3 S.No. Sampling Location Percentile Avg Range 10 30 50 70 90 95 99
1. Sewage Pumping Station 41 (5-128) 7 26 38 51 78 96 128
2. PHED Camp. Shed Pachalam 31 (5-97) 5 10 25 42 72 78 97
3. GCDA, Kadavantra 41 (5-142) 5 14 30 53 97 110 142
4. NEERI, Palarivattam 42 (5-154) 5 26 33 55 76 91 154
5. Thripunithura 61 (5-231) 5 31 54 79 119 150 231
6. Thiruvankulam 37 (5-117) 5 13 23 49 93 105 117
7. Karimugal 24 (5-90) 5 5 14 29 71 73 90
8. Ambalmugal 44 (5-203) 5 14 24 69 88 131 203
9. Thiruvaniyur 42 (5-137) 5 18 28 62 101 108 137
10. Thrikkakara 34 (5-120) 5 17 31 40 67 88 120
11. Kalamassery 32 (5-127) 5 8 21 34 99 104 127
12. Cheranellor 29 (5-143) 5 7 13 31 82 104 143
13. FACT Eloor 171 (5-708) 44 94 128 180 361 413 708
14. Binanipuram 45 (5-209) 5 15 43 59 93 124 209
15. Alwaye 49 (5-229) 5 29 38 51 80 134 229
16. Willingdon Island 86 (5-329) 5 58 90 110 144 151 329
17. Mattenchery 52 (5-242) 5 25 37 55 114 200 242
18. Eloor 101 (5-625) 5 40 68 101 278 346 625
19. Mulavukad 35 (5-84) 5 11 41 50 64 70 84
20. Elakunnapuzha 40 (5-178) 5 14 29 46 77 104 178 For summer 1989 the Ambient Air Quality Status of NH3, : in Table 39 it is stated thus :--
Table 39 : Ambient Air Quality Status of NH3 : Summer 1989 8 Hrs. Avg. Unit :
ug/m3 S.No. Sampling Location Percentile Avg Range 10 30 50 70 90 95 99
1. Sewage Pumping Station 51 (5-157) 11 27 33 49 145 157 157
2. PHED Camp.Shed Pachalam 27 (5-53) 5 16 30 36 46 49 53
3. GCDA, Kadavantra 72 (5-208) 17 36 53 82 175 203 208
4. NEERI, Palarivattam 71 (19-241) 27 37 50 75 181 213 241
5. Thripunithura 53 (5-197) 5 37 47 60 105 105 197
6. Thiruvankulam 40 (5-193) 5 15 39 54 68 84 193
7. Kariraugal 57 (5-354) 9 32 47 65 93 143 354
8. Ambalmugal 112 (5-477) 30 62 88 119 259 362 477
9. Thiruvaniyur 58 (5-150) 5 36 52 80 104 134 150
10. Thrikkakara 56 (5-177) 5 12 46 68 130 156 177
11. Kalamassery 51 (5-141) 5 15 39 67 121 127 141
12. Cheranellor 33 (5-260) 5 5 31 37 53 68 260
13. FACT Eloor 160 (27-641) 44 76 106 175 314 479 641
14. Binanipuram 39 (5-162) 5 9 21 47 87 145 162
15. Alwaye 62 (5-339) 5 18 50 72 154 180 339
16. Willingdon Island 79 (5-583) 5 13 58 103 147 177 583
17. Mattenchery 49 (5-119) 9 26 36 67 100 110 119
18. Eloor 97 (5-886) 5 24 40 91 231 293 886
19. Mulavukad 79 (5-196) 17 42 46 127 186 196 196
20. Elakunnapuzha 83 (10-257) 37 54 63 90 153 257 257
151. In Table 40, Monsoon 1989 it is stated thus :
Table 40 : Ambient Air Quality Status of NH3 : Monsoon 1989 8 Hrs.
Avg. Unit : ug/m3 S.No. Sampling Location Percentile Avg Range 10 30 50 70 90 95 99
1. Sewage Pumping Station 23 (5-75) 5 14 20 29 42 56 75
2. PHED Camp. Shed Pachalam 17 (5-65) 5 5 11 23 40 54 65
3. GCDA, Kadavantra 26 (5-101) 5 5 23 33 61 93 101
4. NEERI, Palarivattam 36 (5-194) 5 15 26 36 85 99 194
5. Thripunithura 19 (5-197) 5 5 8 15 46 64 197
6. Thiruvankulam 22 (5-151) 5 5 14 26 46 67 151
7. Karimugal 26 (5-172) 5 8 17 34 53 85 172
8. Ambalmugal 39 (5-155) 5 17 33 48 82 137 155
9. Thiruvaniyur 46 (5-219) 5 5 31 61 107 148 219
10. Thrikkakara 24 (5-120) 5 5 13 34 57 81 120
11. Kalamassery 46 (5-252) 5 5 15 39 79 145 252
12. Cheranellor 25 (5-105) 5 5 21 29 62 79 105
13. FACT Eloor 132 (5-791) 5 51 108 161 245 397 791
14. Binanipuram 40 (5-223) 5 5 13 53 98 155 223
15. Alwaye 35 (5-160) 5 5 16 46 95 117 160
16. Willingdon Island 42 (5-165) 5 5 32 54 96 126 165
17. Mattenchery 23 (5-89) 5 5 17 26 49 66 89
18. Eloor 46 (5-240) 5 12 22 54 124 188 240
19. Mulavukad 95 (5-332) 5 30 69 119 300 316 332
20. Elakunnapuzha 48 (5-279) 5 19 34 52 88 138 279 In Table 41, the Ambient Air Quality Status of NH3 : Winter 1989 is given.
Table 41:
Ambient Air Quality Status of NH3 : Winter 1989 8 Hrs. Avg. Unit : ug/m3 S.No. Sampling Location Percentile Avg Range 10 30 50 70 90 95 99
1. Sewage Pumping Station 21 (5-75) 5 11 19 32 66 75 75
2. PHED Camp. Shed Pachalam 18 (5-59) 5 5 13 18 35 39 59
3. GCDA, Kadavantra 40 (5-197) 5 13 19 22 34 54 197
4. NEERI, Palarivattamm 23 (5-63) 5 15 27 29 32 63 63
5. Thripunithura 10 (5-26) 5 5 7 11 24 25 26
6. Thruvankulam 13 (5-54) 5 5 5 14 30 45 54
7. Karimugai 8 (5-31) 5 5 10 14 25 28 31
8. Ambalamugal 34 (5-142) 5 9 18 42 44 92 142
9. Thruvaniyur 16 (5-36) 5 5 13 23 35 36 36
10. Thrikkakara 19 (5-61) 5 5 10 26 39 58 61
11. Kalamassery 19 (5-46) 5 9 13 25 43 45 46
12. Cheranellor 25 (5-89) 5 12 21 28 58 89 89
13. FACT Eloor 253 (46-850) 83 23 155 326 446 661 650
14. Binanipuram 20 (5-248) 5 5 5 5 26 62 248
15. Alwaye 26 (5-55) 5 5 25 35 42 48 55
16. Willingdon Island 36 (5-138) 5 9 33 41 83 113 138
17. Mattcnchery 40 (5-126) 7 23 27 33 113 122 126
18. Eloor 123 (5-888) 7 27 73 131 296 302 888
19. Mulavukad 153 (5-991) 5 5 34 130 357 991 991
20. Elakunnapuzha 27 (5-97) 5 5 25 41 60 97 97
152. In paragraph 7, the report adverts to the findings of ammonia status and smog. The report said that a critical perusal of the results of the air pollutant levels in the ambient air of Cochin city revealed that ammonia was the significant pollutant in higher concentrations. High ammonia levels have been observed in almost all monitoring sites during different seasons. Under unstable conditions, dilution and dispersion of ammonia is possible. During stable conditions, instead of dilution and dispersion, built-up of ammonia concentration takes place. When fog is persistent in the atmosphere, the high levels of ammonia forms smog. Such smog occurrences with smell of ammonia were frequent during the initial phase of the study especially during the periods when stable conditions persisted. Apart from the odour of ammonia visibility was affected thereby hampering traffic movements. Young and elderly sensitive segments of population were affected mainly with breathing trouble, coughing etc. Ofr.cn people in the vicinity of the factories were seen moving with wet towels covering their face.
153. It is significant to note that the report points out that besides the industrial source of ammonia it is a normal product of decomposition (putrification) of nitrogen containing organic susbstanccs. In large concentrations it is formed by the decomposition of urea and uric acid and thus reaches the air from sewers, lavatories, stables and manure pit (in most cases together with H2S). The ammonia levels in the air depends on the vicinity of natural or artificial decomposition processes especially of organic substances. Ammonia is auxiliary material for the production of soda and is used in refrigeration plants. The odour threshold limit for NH3 is 46.8 ppm. Ammonia gas acts on the mucous membranes of the mouth and nose as well as-the upper respiratory track as a strong irritant. Further it has to be noted that in the report it is stated that critical studies of the ammonia concentration levels for different sampling stations definitely revealed that the Udyogamandal area represented by station No. 13 and 18 showed high NH3 levels. The average NH3 concentration at Station No. 13 for the entire period of study worked out to be 180 ug/m3. Further at this station about 50% of times, value of 100ug/m3 has been exceeded and the single maximum value of 907, 850 and 641 ug/m3 were recorded for monsoon, winter and summer 'season respectively. Similarly, at station No. 18, during winter the average value of NH3 was 112 ug/m3 while that for summer was 97 ug/m3. The single maximum value around 880 ug/m3 was recorded during winter and summer. The value of 100 ug/m3 has been exceeded at least 10% of the times, thereby reflecting that Udyogamandal area represented by station No. 13 and 18 are the major polluted region as regards NH3 pollution to a lesser degree some time or the other.
154. The report further indicates that special studies were carried out to probe the smog phenomenon during January and December, 1989 being the critical winter period. Intensive air monitoring was carried out during January 1989 from Vytilla area in . Cochin which is one of the most prone smog occurring site in the study region.
155. As regards the complaint of smog formation, Ext. XI report is not helpful to come to a conclusion that smog formation, if any, is on account of leak of ammonia and that too from the storage tank in question. Further it has to be noted from the report the ambient air quality status with reference to ammonia in Willingdon Island in the matter of pollution is far less than the other areas. Relying on the above findings counsel for the first respondent submitted that this Court can safely come to a conclusion at any rate, that the smog formation if any is not the result of any leak of ammonia from the storage tank. There is considerable force in this submission.
FINDINGS OF THE POLLUTION CONTROL BOARD
156. Now we turn to the statements of Pollution Control Board. In the affidavit filed by the Senior Environmental Engineer of the Kerala State Pollution Control Board as per the order of this Court on 9-11-1993 it is stated that the ambient air quality standard for ammonia was notified on 14-5-1992 by the Kerala State Pollution Control Board in consultation with the Central Pollution Control Board under Section 17(1)(i) of the Air (Prevention and Control of Pollution) Act, 1981 as 400 micro gram/m3 (24 hours average), the annual average shall also not to be exceeded. This is introduced as a dual check to control pollution. The standard for ammonia as fixed for Cochin and Karimunal area taking into consideration the standard recommended and proposed by the Central Board, the standard available in other countries and also considering possible atmospheric inversion particularly during the winter season. Ext. R4(c) is the true copy of the draft ambient air quality standard for ammonia proposed by the Central Pollution Control Board. Table III of Ext. R4(c) contains the proposed standards of ammonia in ambient air. Table III reads thus :
Daily average (sample duration 24 hrs) 0.4 mg/m3 Annual average of 104 samples (2 samples drawn every week) 0.1 mg/m3
157. In paragraph 3 of the affidavit, it is stated that the standard fixed in other countries is by miligram. One miligram is equal to 1000 micro gram. Thereby in most of the countries the standard fixed is 200 ug/m3 (microgram) and in Hungary, the area other than protected area 500 ug/m3 is fixed.
Cochin and Karimugal are not protected areas. Therefore, taking into account the toxic effect, the standard fixed in other countries, 400 Ug/m3 was fixed for 24 hours. But at the same time, it was also prescribed that in no case it shall not exceed the annual average of 100 Ug/m3. Further the Board has stated thus:--
According to the information available the ambient air quality standard for ammonia is not prescribed by any other State in India. Like Cochin area, for Thane area at Maharashtra, steps are being taken for finalising the ambient air quality standard by the State Pollution Control Board. It is also understood that the proposed standard is 400 Ug/m3. It is submitted here that before the notification is published on 14-5-1992 no statutory limit is prescribed for Ammonia in ambient air. Therefore it was not legally enforceable for the Board the various provisions of the Air (Prevention and Control) Act, 1981. However, the ambient air quality was monitored regularly along with various other items of pollutants regularly from 1984 onwards.
158. In the report filed by the Senior Environmental Engineer, Kerala State Pollution Control Board, the Board has given the data of ambient air quality available for the period commencing from March, 1990 to August, 1992 at Wilingdon Island. We are reproducing the data:
KERALA STATE POLLUTION CONTROL BOARD AMBIENT AIR QUALITY DATA PARAMETER : AMMONIA STATION : W/ISLAND Month : March 1990.
Date Concentration (Microgram/Cubic meter (24 hours average 2-3-1990 65.70 5-3-1990 127.64 7-3-1990 50.42 9-3-1990 146.05 12-3-1990 66.60 14-3-1990 85.09 16-3-1990 79.31 19-3-1990 93.34 21-3-1990 98.48 23-3-1990 73.84 26-3-1990 64.14 28-3-1990 57.85 2-4-1990 10.17 44-1990 27.17 6-4-1990 29.29 9-4-1990 4.35 20-4-1990 76.04 23-4-1990 61.94 25-4-1990 94.17 28-4-1990 32.95 30-4-1990 25.81 Month : May 1990.
7-5-1990 10.51 9-5-1990 39.97 11-5-1990 26.60 14-5-1990 12.51 16-5-1990 20.08 23-5-1990 9.01 25-5-1990 7.61 28-5-1990 47.39 30-5-1990 7.61 Month : June 1990.
1-6-1990 (??) 26.39 4-6-1990 66.95 6-6-1990 11.98 8-6-1990 30.03 11-6-1990 42.44 13-6-1990 30.03 15-6-1990 24.48 18-6-1990 20.66 20-6-1990 14.75 22-6-1990 20.91 27-6-1990 5.98 Month : July 1990.
2-7-1990 4.98 6-7-1990 11.47 9-7-1990 11.68 13-7-1990 35.11 16-7-1990 15.71 18-7-1990 59.02 30-7-1990 35.04 Month : August 1990.
1-8-1990 35.09 7-8-1990 25.20 9-8-1990 16.34 15-8-1990 35.79 18-8-1990 41.54 23-8-1990 92.90 25-8-1990 91.66 27-8-1990 65.74 Month : September 1990 1-9-1990 31.15 12-9-1990 31.50 14-9-1990 129.17 18-9-1990 115.38 20-9-1990 36.49 22-9-1990 19.25 25-9-1990 63.04 7-9-1990 39.10 29-9-1990 41.95 Month: October 1990.
3-10-1990 20.13 5-10-1990 70.34 6-10-1990 34.98 10-10-1990 50.45 18-10-1990 56.35 18-10-1990 65.45 22-10-199016.20 Month: November 1990.
2-11-1990 90.08 5-11-1990 89.09 9-11-1990 24.42 13-11-1990 50.81 15-11-1990 29.68 17-11-1990 27.33 19-11-1990 30.60 21-11-1990 54.68 23-11-1990 49.98 25-11-1990 97.76 29-11-1990 56.51 Month : December 1990.
3-12-1990 31.17 5-12-1990 40.35 7-12-1990 40.32 10-12-1990 35.47 12-12-1990 50.75 14-12-1990 55.04 16-12-1990 46.35 18-12-1990 46.6 22-12-1990 33.42 26-12-1990 35.28 Month : January 1991.
2-1-1991 49.23 4-1-1991 60.33 7-1-1991 70.29 9-1-1991 25 11-1-1991 78.99 15-1-1991 46.95 17-1-1991 51.82 23-1-1991 43.01 Month : February 1991.
1-2-1991 39.85 4-2-1991 15.60 6-2-1991 37.55 8-2-1991 47.22 11-2-1991 29.69 13-2-1991 35.95 15-2-1991 45.42 20-2-1991 19.47 22-2-1991 8.17 25-2-1991 53.94 Month : March 1991.
1-3-1991 35.23 5-3-1991 73.96 7-3-1991 43.06 9-3-1991 33.33 11-3-1991 38.54 13-3-1991 47.92 15-3-1991 36.81 17-3-1991 18.75 19-3-1991 140:63 21-3-1991 92.00 23-3-1991 40.00 25-3-1991 70.04 30-3-1991 00.32 Month: April 1991.
1-4-1991 67.71 3-4-1991 30.21 7-4-1991 120.63 9-4-1991 55.21 15-4-1991 15.28 17-4-1991 47.92 19-4-1991 25.69 21-4-1991 114.58 23-4-1991 72.92 27-4-1991 161.11 Month : May 1991.
1-5-1991 88.19 3-5-1991 85.42 9-5-1991 33.68 11-5-1991 135.76 13-5-1991 44.44 15-5-1991 56.60 19-5-1991 244.79 23-5-1991 37.15 25-5-1991 39.24 27-5-1991 57.64 29-5-1991 52.43 Month : June 1991.
3-6-1991.
129.51 5-6-1991 55.17 7-6-1991 6.25 9-6-1991 24.31 13-6-1991 51.74 15-6-1991 40.97 19-6-1991 12.15 25-6-1991 84.72 Month : July 1991.
3-7-1991 77.05 5-7-1991 10.42 17-7-1991 67.36 23-7-1991 46.07 25-7-1991 91.53 29-7-1991 75.25 Month: August 1991.
1-8-1991 50.28 3-8-1991 40.58 13-8-1991 87.33 15-8-1991 90.80 Month : February 1992.
5-2-1992 115 7-2-1992 109.11 12-2-1992 54.34 14-2-1992 59.90 17-2-1992 73.44 19-2-1992 105.05 21-2-1992 106.05 24-2-1992 70.04 26-2-1992 125 Month : March 1992.
4-3-1992 77.60 6-3-1992 102.80 9-3-1992 85.59 11-3-1992 31.42 16-3-1992 34.96 19-3-1992 73.61 23-3-1992 84.38 Month : April (992.
2-4-1992 35.54 6-4-1992 62.60 9-4-1992 111.05 20-4-1992 55.11 22-4-1992 190.70 24-4-1992 12.63 27-4-1992 105.60 Month : May 1992.
4-5-1992 70.04 7-5-1992 103.04 11-5-1992 94.75 14-5-1992 110.03 16-5-1992 80.50 21-5-1992 88.19 25-5-1992 101.04 28-5-1992 73.75 Month : June 1992.
1-6-1992 53.13 4-6-1992 44.36 8-6-1992 74.79 11-6-1992 50.00 15-6-1992 47.32 16-6-1992 104.19 22-6-1992 91.91 23-6-1992 134.41 Month : July 1992.
1-7-1992 105.38 6-7-1992 75.99 9-7-1992 12.50 13-7-1992 54.44 16-7-1992 50.14 20-7-1992 04.93 23-7-1992 45.09 Month : August 1992.
4-8-1992 61.98 7-8-1992 68.92 11-8-1992 84.97 16-8-1992 102.06 19-8-1992 90.73 21-8-1992 39.24 25-8-1992 58.40 28-8-1992 40.26
159. Though it was strenuously argued that on account of leakage of ammonia from the tank, there is air pollution caused by the presence of more than the permitted amount of ammonia in the air, from the materials available in the case and from the report and from the date given by the Air Pollution Control Board, it is difficult for this Court to come to a definite conclusion that the leak in storage tank is causing air pollution by the presence of ammonia either in Willingdon Island or in Cochin City, we may make it clear that it is not safe to accept the case of the petitioner on the materials placed before us that there is occasional leak Of ammonia from the tank and that is the reason for the smog formation in Cochin City and further that such leak of ammonia from the storage tank is causing air pollution by the presence of more than the prescribed standard for ammonia in ambient air under Section 17(1)(i) of the Air (Prevention and Control of Pollution) Act, 1981.
160. Human health, Environment, development and law are globally interlinked. Environment was rightly placed on the agenda of international priorities which was placed for discussion on the Stockholm Environment Conference in 1972. The United Nations Conference on Environment and Development which was held in June, 1992 marked the culmination of two decades of persistent and relentless efforts to protect environment and to foster international environmentalism. Survival of human life and survival of the earth have been moving from issue to issue in the last two decades. Actually issues on health and environmental problems are identical and they cannot be solved by applying advanced technology alone. Diseases arising out of deprivation of essentials such as food, clean air and water are rampant. No best of the treatment though sophisticated drugs and doctors can provide health care if essentials necessary for human survival are not available and become scarce, or hazards of human life are not controlled and not eliminated.
161. A series of major international conferences of world leaders starting with the World Summit for children in 1990, the Conference on Environment and Development in 1992 and the World Social Summit scheduled for 1995 have all focussed the attention of the world on critical issues facing society both now and in the years coming ahead. It is significant to note that there is now a broad cognisance that pious good wishes for humanitarian welfare will not simply be adequate to assure human well being, social justice and sustainable development for all. The world is looking increasingly for a sound judicial basis to ground national action to assure that necessary steps are taken to achieve the various objectives scheduled as priority for the survival of a peaceful and equitable world society. Life on earth can never be peaceful if it is shrowded in perpetual anxiety and fear of extinction on account of human activities, which may be based perhaps on highly advanced technology.
162. Counsel for the petitioner submitted before us that the first respondent is not conforming to certain statutory requirements. Counsel Shri Suganapalan appearing for the fourth respondent referred us the relevant statutory provisions in this matter. When we sketch the history of the legislation in regard to air pollution, we have to divide it to two segments; one segment prior to 1972 and the other subsequent to 1972.
163. The environmental pollution caused by the factories and other industrial plants v/as in a peripheral way dealt with in the Factories Act, 1948 providing for skeletal speedy measures to be adopted by the owners of factories and industrial plants. Certain sections of Indian Penal Code and Criminal Procedure Code also provided certain measures in this direction. The relevant sections in the Indian Penal Code are Sections 268, 269, 277 and 290 and Sections 133 and 134 of the Criminal Procedure Code. When we mention the statutes in this segment, we have to mention the Travancore-Cochin Public Health Act, 1955, Panchayat Act, 1960, Municipalities Act, and the Corporations' Act, and the rules under these Acts. They provided for certain measures intended for abating nuisance and for protection of public health and safety.
164. Articles 48A and 5IA of the Constitution were brought in the Constitution by 42nd Constitution Amendment Act of 1976. Article 48A of the Constitution provided for protection and improvement of environment and safeguarding of forest and wild life. Article51A of the Constitution of India provided as a fundamental duty to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. Inl974, Parliament passed Water (Prevention and Control of Pollution) Act, 1974. This Act provides for the prevention and control of water pollution, maintaining or restoring of wholesomeness of water. The establishments with a view to carrying out the purposes envisaged in the Act of Boards for the prevention and control of water pollution; provision for conferring on and assigning to such Boards powers and functions relating matters connected with the objects of the Act.
165. After the Bhopal Tragedy in 1984, the Factories Act was amended in 1987 adding a Chapter IV-A. Chapter IV-A relates to hazardous processes. Section 41-A in Chapter 1V-A of the Factories Act provided that the State Government may for purposes of advising it to consider applications for grant of permission for the initial location of a factory involving a hazardous process or for the expansion of any such factory, appoint a Site Appraisal Committee consisting of persons enumerated in the section.
166. Powers are given to the Committee under Clauses 2 to 5. Section 41-B of the Factories Act provided for compulsory disclosure of information by the occupier. It provided that the every occupier of the factory shall (a) if such factory engaged in a hazardous process on the commencement of the Factories (Amendment) Act, 1987, within a period of thirty days of such commencement; and (b) if such factory propose to engage in a hazardous process at any time after such commencement, within a period of thirty days before the commencement of such process, inform the Chief Inspector of the nature and details of the process in such form and in such manner as may be prescribed. Sub-clause (6) of Section 41-B of the Factories Act provided that where any occupier of a factory contravenes the provisions of Sub-section (5) the licence issued under Section 6 to such factory shall, notwithstanding any penalty to which the occupier or factory shall be subjected to under the provisions of the Act, be liable for cancellation. Sub-clause (7) of Section 41-B of the Factories Act provided that the occupier of a factory involving a hazardous process shall, with the previous approval of the Chief Inspector, lay down measures for the handling, usage, transportation and storage of hazardous substances outside the factory premises and publicise them in the manner prescribed among the workers and the general public living in the vicinity.
167. In 1986, Parliament passed the Environment (protection) Act. This Act provided for the protection and improvement of environment and for matters connected therewith. In Chapter I of the Environment (Protection) Act, 'hazardous substance' is defined to mean any substance or preparation which, by reason of its chemical or physico-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plants, micro-organism, property or the environment. In Section 2(d) of the Environment (Protection) Act 'handling' is defined as in relation to any substance, means the manufacture, processing, treatment, package, storage, transportation, use, collection, destruction, conversion, offering for sale, transfer or the like of such substance. Section 3 of the Environment (Protection) Act provided that the Central Government shall subject to the provisions of the Act have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the environment and improving the quality of the environment and preventing, controlling and abating environmental pollution. In particular, and without prejudice to the generality of the provisions of Sub-section (1), such measures may include measures with respect to itemised matters. The matters itemised arc (i) to (xiv), Item (iv) relates to laying down standards for emission or discharge of environmental pollutants from various sources whatsoever. The storage tank also will come under the provisions of the Environment (Protection) Act, 1986.
168. Environment (Protection) Rules were framed to implement the provisions of the Act. Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 (hereinafter referred to as the 'Storage Rules') were framed under the Environment (Protection) Act, 1986. 'Hazardous chemicals' is defined in the Storage Rules as 'any chemical which satisfies any of the criteria laid down in Part I of Schedule I and is listed in Column 2 of Part II of Schedule 1. In Schedule I, Part II, item 16 is ammonia.
169. Section 2(a) of the Environment (Protection) Act defines 'environment' to include water, air and land and the interrelationship which exist among and between water, air and land, and property. Section 2(b) of the Environment (Protection) Act defines 'environmental pollutant' to mean any solid, liquid or gaseous susbtance present in such concentration as may be, or lend to be, injurious to environment. Section 3 of the Environment (Protection) Act deals with power of Central Government to take measures to protect and improve environment. There is provision to lake measures of laying down standards for emission or discharge of environmental pollutants from various sources whatsoever and also gives power of inspection of any premises, plant, equipment, machinery, manufacturing or other processes, material or substances and giving, by order, of such directions to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of environmental pollution. Sections of the Environment (Protection) Act provides that the Central Government may, in the exercise of its powers and performance of its functions under the Act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions. Section 6 of the Environment (Protection) Act gives power to the Central Government to make rules in respect of all or any of the matters referred to in Section 3.
170. Exercising the power under Section 6, the Environment (Protection) Rules were framed. Rule 2(ee) defines 'prohibited substance' to mean the substance prohibited for handling. Rule 2(i) of the Environment (Protection) Rules defines 'standards' to mean standards prescribed under the Rules. Rule 5 of the Environment (Protection) Rules deals with prohibition and restriction on the location of industries and the carrying on processes and operation in different areas. This Rule provides that the Central Government may take into consideration certain factors while prohibiting or restricting the location of industries and carrying on processes and operations in different areas. One of the factors mentioned is proximity to human settlement. Rule 5(3)(a) of the Environment (Protection) Rules provide that whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the location of an industry or the carrying on of processes and operations in an area, it may, by notification in the Official Gazette and in such other manner as the Central Government may deem necessary from time to time, give notice of its intention to do so. Rule 13 of the Environment (Protection) Rules deals with prohibition and restriction on the handling of hazardous substances in different areas. In fact this Rule empowers the Central Government to existing industries.
171. We may now refer to the Storage Rules again. Rule 2(e) of the Storage Rules define 'hazardous chemical' to mean (i) any chemical which satisfies any of the criteria laid down in Part I of Schedule I and is listed in Column 2 of Schedule 2. Schedule 2, Item it is ammonia. Schedule 3, Group I deals with toxic chemicals. There also item 105 is ammonia 5o t. Rule 2(h) of the Storage Rules defines 'Industrial activity' to mean (i) an operation or process carried out in an industrial installation referred to in Schedule 4 involving or likely to involve one or more hazardous chemicals and includes on-site storage or on-site transport which is associated with that operation or process, as the case may be; or (ii) isolated storage; or (iii) pipeline. Isolated storage is defined in Rule 2(i) of the Storage Rules to mean storage of a hazardous chemical, other than storage associated with an installation on the same site specified in Schedule 4 where that storage involves at least the quantities of that chemical set out in Schedule 2. Rule 2(m) of the Storage Rules defines 'site' to mean any location where hazardous chemicals are manufactured or processed, stored, handled, used, disposed of and includes the whole of an area under the control of an occupier and includes pier, jetty or similar structure whether floating or not.
172. Rule 4 to Rule 15 deal with the responsibility of the occupier during industrial activity which include isolated storage-Rules 4 to 15 of the Storage Rules are applicable to the storage tank in question, since in Schedule 2 it is stated that as far as chemical ammonia is concerned Rules 4, 5 and 7 to 9 and 10 to 15 are applicable if threshold quantity is more than 600 tonnes. Rule 6 of the Storage Rule provides industrial activity to which Rule 7 to 15 apply. Rules 7 to 15 shall apply to an industrial activity which involved a quantity of a hazardous chemical listed in Column 2 of Schedules which is equal to or more than the quantity specified in the entry for that chemical in Columns 3 and 4 (Rules 10-12 only for Column 4) and (b) isolated storage which is involved in quantity of a hazardous chemical listed in Column 2 of Schedule 2 which is equal to or more than the quantity specified in the entry for that chemical in Column 4. Column 2, item 2 of Schedule 2 is ammonia. Column 4 in Schedule 2 is 600 tonnes. The tank in question, we have to remember is storing 10,000 tonnes of ammonia. For the purposes of Rules 7 to 15 of the Storage Rules an 'existing industrial activity' means an industrial activity which is not a new industrial activity.
173. We are referring to these Rules only to indicate the fact that the statute also recognises that storing of ammonia will attract all the safety measures and other provisions of the Storage Rules. Rule 7 of the Storage Rules is of some importance. It provides that "An occupier shall not undertake any industrial activity unless he has submitted a written report to the concerned authority containing the particulars specified in Schedule 7 at least 3 months before commencing that activity or before such shorter time as the concerned authority may agree and for the purposes of this paragraph, an activity in which subsequently there is or is liable to be a threshold quantity or more of an additional hazardous chemical shall be deemed to be a different activity and shall be notified accordingly". Schedule 7 gives the details of information to be furnished for the notification of sites. Item 7 is information relating to the potential for major accidents, namely (a) identification of major accident hazardous; (b) the conditions or events which could be significant in bringing one about; (c) a brief description of the measures taken. Item 8 is information relating to the site, namely, (a) a map of the site and its surrounding area to a scale large enough to show any features that may be significant in the assessment of the hazard or risk associated with the site :-- (i) area likely to be affected by the major accident, (ii) population distribution in the vicinity, (b) a scale plan of the site showing the location and quantities of all significant inventories of the hazardous chemicals; (c) a description of the process or storage involving the hazardous chemicals and an indication of the conditions under which it is normally held; (d) the maximum number of persons likely to be present on site. Rule 8 of the Storage Rules deals with updating of the site notification following changes in the threshold quantity of hazardous chemicals of which the Storage Rules apply. Rule 9 of the Storage Rules provides for the transitional provisions to comply with the requirement under Rule 7(1). Rule 10 of the Storage Rules deals with safety reports. It provides that an occupier shall not undertake any industrial activity to which the Storage Rules applies, unless he has prepared a safety report on that industrial activity containing the information specified in Schedule 8 and has sent a copy of that report to the concerned authority at least ninety days before commencing that activity. Rule 13 of the Storage Rules provides for the preparation of on-site emergency plan by the occupier. Rule 14 of the Storage Rules deals with the preparation of off-site emergency plans by the authority. We quote Rules 13 and 14 of the Storage Rules :
"13. PREPARATION OF ON-SITE EMERGENCY PLAN BY THE OCCUPIER.-
(1) An occupier shall prepare and keep up-to-date on on-site emergency plan detailing how major accidents will be dealt with on the site on which the industrial activity is carried on and that plan shall include the name of the person who is responsible for safety on the site and the names of those who are authorised to take action in accordance with the plan in case of an emergency.
(2) The occupier shall ensure that the emergency plan prepared in accordance with Sub-rule (1), takes into account any modification made in the industrial activity and that every person on the site who is affected by the plan is informed of its relevant provisions.
(3) The occupier shall prepare the emergency plan required under Sub-rule (1).-
(a) in the case of a new industrial activity, before that activity is commenced;
(b) in the case of an existing industrial activity within 90 days of coming into operation of these rules.
14. PREPARATION OF OFF-SITE EMERGENCY PLANS BY THE AUTHORITY.-
(1) It shall be the duty of the concerned authority as identified in Column 2 of Schedule 5 to prepare and keep up-to-date an adequate off-site emergency plan detailing how emergencies relating to a possible major accident on that site will be dealt with and in preparing that plan the concerned authority shall consult the occupier, and such other persons as it may deem necessary.
(2) For the purpose of enabling the concerned authority to prepare the emergency plan required under Sub-rule (1), the occupier shall provide the concerned authority with such information relating to the industrial activity under his control as the concerned authority may require, including the nature, extent and likely effects off-site of possible major accidents and the authority shall provide the occupier with any information from the off-site emergency plan which relates to his duties under Rule 13.
(3) The concerned authority shall prepare its emergency plan required under Sub-rule (1),--
(a) in the case of a new industrial activity, before that activity is commenced;
(b) in the case of an existing industrial activity, within six months of coming into operation of these rules.
174. The off-site emergency plan is seen prepared by the crisis management committee. A copy of the publication of off-site emergency plan for Ernakulam District by the crisis management committee was handed over to us for our perusal. The off-site emergency plan handed over to us is for 15 major accident hazard installations identified in Ernakulam District under crisis management plan. In this book item 1 is Fertilizers and Chemicals Travancore Ltd., Ammonia Handling Facility, Willingdon Island, Cochin. We are not examining in detail whether the off-site emergency plan prepared by the crisis management committee is satisfactory or not. However, we are assured of the fact that an off-site emergency plan has been prepared by the authorities concerned probably to meet the requirement of the provisions of the Storage Rules. In the counter-affidavit filed by the first respondent on 7th July, 1989 in paragraph 14, it is stated that in 1985 itself the first respondent approached the 6th respondent to formulate a contingency plan for the ammonia storage installation at Willingdon Island and accordingly the 6th respondent formed a task force on 23rd April, 1985. We have already referred to the report of the task force which refrain from formulating a contingency plan. However, as we said earlier, the crisis management committee has prepared in 1991 an off-site emergency plan to comply with the requirement under Rule 14 of the Storage Rules.
175. We have adverted to the various rules and provisions of the Act to indicate that we find it difficult to understand why the authorities under the Acts and Rules including State Pollution Control Board did not take any action to prevent the operation of the storage tank even though in the counter filed by the Board they have stated the potential danger to human lives in allowing the continuance of the storage tank in plain and unequivocal terms. The Board has said that the storage tank in Willingdon Island is located in a very sensitive and strategic location very near to the Airport, Wharf, Railway Station and the Naval Base. They have said that it is not an ideal place to store ammonia in such large quantity. Further they have said that although occasional leakage of ammonia will not be a serious hazard potential, danger apprehended by the petitioner on account of any possible natural or other calamities cannot be fully ruled out or ignored.
PUBLIC LIABILITY INSURANCE ACT :
176. Now, we may give in brief the provisions of the Public Liability Insurance Act, 1991. The Act is one to provide for public liability insurance for the purpose of providing immediate relief to the persons affected by accident occurring while handling any hazardous substance and for matters connected therewith or incidental thereto. The definition of the word 'accident' was amended by Amendment Act, 1992 (Act No. 11 of 1992). After the amendment, the definition reads thus:--
"accident" means an accident involving a fortuitous, or sudden or unintended occurrence while handling any hazardous sub-stnace resulting in continuous or intermittent or repeated exposure to death of, or injury to, any person or damage to any property but does not include an accident by reason only of war or radio activity.
"Handling" is defined to mean in relation to any hazardous substance, the manufacture, processing, treatment, package, storage, transportation by vehicle, use, collection, destruction, conversion, offering for sale, transfer or the like of such hazardous substance. "Hazardous substance" is defined as any substance or preparation which is defined as hazardous substance under the Environment (Protection) Act, 1986 (29 of 1986) and exceeding such quantity as may he specified by notification by the Central Government.
177. Section 3 of the Public Liability Insurance Act deals with liability to give relief in certain cases on principle of no fault. Subsection (3) of Section 3 provides that where death or injury to any person (other than a workman) or damage to any property has resulted from an accident, the owner shall be liable to give such relief as is specified in the Schedule for such death, injury or damage. Sub-section (2) provides that in any claim for relief under Sub-section (1), the claimant shall not be required to plead and establish that the death, injury or damage in respect of which the claim has been made was due to any wrongful act, neglect or default of any person. Section 4 enjoins the owner to take out insurance policies. It provides that every owner shall take out, before he starts handling any hazardous substance, one or more insurance policies providing for contracts of insurance whereby he is insured against liability to give relief under Sub-section (1) of Section 3. The proviso to this sub-section makes it clear that any owner handling hazardous substance immediately before the commencement of the Act shall take out such insurance policy or policies as soon as may be and in any case within a period of one year from such commencement. Sub-section (2) of Section 4 provides that every owner shall get the insurance policy referred to in Sub-section (1) renewed from time to time before the expiry of the period of validity thereof so that the insurance policies may remain in force throughout the period during which such handling is continued. Sub-section (3) provides that the Central Government may, by notification, exempt from the operation of Sub-section (1) any owner, namely:--
(a) the Central Government;
(b) any State Government;
(c) any Corporation owned or controlled by the Central Government or a State Government; or
(d) any local authority.
178. It is significant to note that the section itself provides exemption by notification the Central Government or any Corporation owned or controlled by the Central Government or a State Government or any local authority.
179. We are not examining the question whether the first respondent can take shelter under Sub-section (3) of Section 4. We may also advert to an amendment of Section 4 adding Sub-clause (2A) which provides that no insurance policy taken out or renewed by an owner shall be for an amount less than the amount of the paid-up capital of the undertaking handling any hazardous substance and owned or controlled by that owner and more than the amount, not exceeding fifty crore rupees, as may be prescribed.
180. In the affidavit of the first respondent dated 8th December, 1993, the first respondent has stated that the policy currently in force issued by the United India Insurance Company bearing Policy No. 100100/48-38-11-890A/92 is valid for the period 31-3-1993 to 30-3-1994 and covers a liability to the extent indicated by the rule. The first respondent has further stated that in addition to the premium payable an equal amount was also paid as required under the statute to the credit of the Environment Relief Fund constituted by the Government of India. It is also said that the Company will continue to keep the policy renewed from time to time. It is stated that the first respondent-Company has additional insurance cover towards any further liability that may arise out of such accidents.
181. Since there is no case advanced before us by the petitioner that the requirements under the Public Liability Insurance Act have not been complied with, we have not examined this question deeply. We have to say that in order to convince us as to the great accountability felt by the first respondent in the matter of assuring the court that the first respondent is always willing and complying with all the statutory requirements in regard to the storage tank he has produced for our perusal the papers relating to the insurance policy taken by the first respondent, complying with the provisions of Section 4 of the Liability Insurance Act. We feel that we need not further investigate this question in view of the course of action we are taking in this case. Even if we take a different course of action, the only thing that is feasible in the circumstances of the case is to direct the authorities under the Factories Act and its Rules, Environmental Protection Act and its Rules, Manufacture, Storage and Import of Hazardous Chemicals Rules, Public Liability Insurance Act, Air (Prevention and Control of Pollution) Act and other Acts to take rigorous steps to see that within a time schedule the first respondent should be compelled to comply with all the requirements. As we said earlier, we have not examined it thoroughly. We feel that in this aspect of the matter, the first respondent is showing a readiness and willingness to comply with all safety measures and other requirements under the relevant statutes and rules.
182. Now we may dispose of a contention raised by the first respondent and additional respondents 9 to 24. They submitted before us that the petitioner has got ulterior motive in presenting this case and some extraneous agencies are helping the petitioner for financial gian. Counsel for the petitioner very seriously controverted this allegation. No material has been placed before us to substantiate this allegation against the petitioner. In this connection, it has to be noted that the second respondent-Port Trust and the third respondent-Southern Naval Command all are against the continuance of the ammonia storage tank at Willingdon Island. We see no merit in this allegation.
VALUE AND BINDING NATURE OF EXPERTS' OPINION:
183. Before adverting to certain conclusions we have reached, we may now advert to the question as to how far we are bound by the findings in several reports by experts. Counsel for the first respondent submitted that this Court is bound to give utmost consideration to the opinions given by experts since the questions and issues involved in the case relate to environmental; scientific and engineering questions on which certainly this Court cannot expect to have any expertise. Certainly the questions we are discussing, are all of high technology and we have to give much importance to experts' evidence.
184. In the decision reported in 1988 (2) SCC 115 : (AIR 1988 SC 952) (Shivarao Shantaram Wagle (II) v. Union of India), the Supreme Court had occasion to consider in a public interest litigation where it was alleged radioactive contamination of Irish butter imported into India under EEC Grant-in-Aid for Operation Flood Programme supplied to Greater Bombay Milk Scheme by National Dairy Development Board -- how far the court can take evidence to determine whether the degree of radio-active contamination is within the permissible limit or not. The Supreme Court said that judicial proceedings is not appropriate for determination of such matters and the expert committee appointed by court and the report of that expert committee wherein they have given the opinion that consignment of imported butter was safe and harmless for human consumption, is sufficient assurance to the court and no interference is called for in that matter. The Supreme Court agreed with the conclusion of the High Court in this case. The Supreme Court quoted a passage from the High Court's decision :--
"Fixation of the permissible limit of radio activity in a product, naturally, is for the scientists to decide, but the tests themselves are carried on by persons working in the laboratory, naturally, again under the guidance of the scientists concerned. We have not found that any defect is disclosed in the material which has been placed before us in the manner of testing. We have also not been shown that any other better method is available."
185. We have to be informed of the norm that on an examination by the court the materials placed before the court whether they are by the scientists or by the experts, if the court finds that the conclusions reached by the experts are unsatisfactory, the court is not bound to accept the reports saying with folded hands that after all the report is that of a committee of experts and the court has no expertise on the matter enquired into by the experts. In this case, viz. (1988) 2 SCC 115: (AIR 1988 SC 952), it is very pertinently said that the High Court did not find any defect disclosed in the material which has been placed before the court in the manner of testing. Certainly it indicates that if the court is not satisfied with the manner of examination or investigation, the court is not bound to act on the experts' opinion. We do not think that we are bound to follow blindly the opinion of the experts. In this context, we may say that counsel for the first respondent has attacked the report of the expert --Dr. Campbell -- a commission appointed by this Court and wanted us not to rely on the report of the Commissioner, though he sub-milled in regard to the reports of the other experts, viz., M/s. Cremer and Warner, T.U.V. I.I.T. that the reports are the opinion of experts and that we should accept it without reservation. We cannot fully agree with the submissions made by counsel for the first respondent.
186. It has to be borne in mind when assessing the opinion of experts that "clearly it is not the province of the expert to act as Judge or Jury", All questions calling for the opinion of the experts are questions on which the ultimate decision has to be made by the Judge. Expert opinion gets its weight and authority when the expert puts before the court all the materials which induce him to come to the conclusions so that the court, although not an expert, may form its own opinion on those materials, (vide Ajitrai v. Vasumati) Titli v Jones, 1934 All ER 273). Opinions must be supported by reasons and it is the reason find not blank finding that is important.
187. Section 45 of the Evidence Act, of course, allows the court to consider expert evidence. It provides that when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger-impressions, the opinion upon that point of persons specially skilled in such foreign law, science or art or finger-impressions are relevant facts. It must not be lost-sight of that experts give evidence and do not decide the issue. (Metropolitan Properties Co. Ltd. v. London, (1968) 1 All ER 354; R. v. Lanfear, (1968) 1 All ER 683; and R. v. Smith, (1974) 1 All ER376.) Expert evidence unsupported by any reason may be ignored in the circumstances of the case. (Haji Mohammad Ekramul v. S., AIR 1959 SC 488.) Cross on Evidence, 5th Edn., page 447 says "Although the expert witness has not escaped criticism, he is probably the best means, compatible with the adversary system, of furnishing the Judge and Jury with information on matters calling for expertise". "Testimony of experts is often considered to be of slight value since they are proverbially biased in favour of the side which calls them as well as ever ready to regard harmless facts as confirmation of pre-conceived theories; moreover support or opposition to given hypothesis can generally be multiplied at Will". The court has accepted "the evidence of a wife as to paternity of a ten months' child, in spite of the unanimous opinion of several doctors". (Bowden v. Bowden, 62 SJ 105). There are reasons to think that the words "science and art" are wide enough to cover all branches of specialised knowledge, although, occasionally doubts have arisen in this regard. With the advancement of scientific and technical knowledge there is a tendency to widen the scope of the term "science and art". The opinions of experts are generally admissible whenever an issue comprises a subject of which knowledge can only be acquired by special training or experience. Under this head are included matters of science, an and trade, genuineness of handwriting and foreign law (Halsbury, 3rd Edn. Vol. 15).
188. Since in this case there are several reports by experts we have sketched very broadly to what extent we are bound by the experts' evidence. We advert to this aspect since as regards certain reports already discussed, we want to say that on the statements of reasons given in the report itself, the findings recorded in the report, we find it extremely difficult to accept.
189. Certain important facts and circumstances unfolded in the Case and the findings.
(i) In case of a catastrophic accident to the storage tank resulting in a major crack or rupture, it would lead to disastrous and devastating consequences of annihilating all living beings inverting the city of Cochin, a city of the dead and nearby places, a morbid grave-yard.
(ii) The catastrophic failure of the tank is not an unreal or a remote possibility, but a credible and contingent possibility to be reasonably anticipated on the facts unfolded in the case.
(iii) Though the catastrophic event is only a possibility and when it would happen is unpredictable, it is unwise to forget or slur it. Once it happens, it is irreversible, so prudence dictates not complaisances, but positive action.
190. We have come to the conclusion that the location is most dangerous strategic, sensitive and unsuitable on the point of safety on the following facts :
(a) The second respondent -- Port Trust --in their affidavit filed before this Court said that the ammonia tank has to be shifted to a safer location. Details we have already discussed in earlier paragraphs.
(b) The Chairman of the Cochin Port Trust by his letter dated 8-3-1989 to the Secretary to Government of India, Ministry of Surface Transport suggested the resisting of the ammonia storage tank on account of its potential danger.
(c) As early as 11th August, 1989, the Southern Naval Command recommended the immediate shifting of the ammonia tank to a safer place.
(d) The first respondent (FACT) in its counter-affidavit filed before this Court expressed its full awareness of the dangers and hazards involved in continuing the operation of the 10,000 tonnes ammoniatank in Willingdon Island and admitted before this Court in its first affidavit itself (which has already been adverted to) that it is necessary to find an alternative for the present arrangement of storing imported ammonia in the storage tank at Willingdon Island. This court was told that steps have already been taken for installing a plant for production of ammonia in the premises of the first respondent's factory at Udyogamandal. This statement was repeated in their latest affidavit already referred to wherein they have stated that all steps have been taken and financial sanction has been obtained for installing a plant for manufacture of ammonia. But it is said that commissioning of that plant and stopping of the storage tank, the first respondent is expecting only in 1998. We feel that the first respondent is taking action for commissioning a new plant for manufacture of ammonia and to abandon the existing storage tank only for the reason that the ammonia tank in question poses an unabated risk and threat to lives of thousands of people. We here note that counsel very candidly submitted before us that importing ammonia is cheaper, considering the cost of the raw materials for the production of ammonia and the cost of the plant that has to be installed. It is evident that the first respondent is willingly accepting that the site where the ammonia tank is now situated really poses a serious threat to life which has already been adverted to by us.
(e) We find that the opinion of the fourth respondent -- Pollution Control Board -- is also to the effect that the present location of the ammonia tank is almost unsuitable and for the safety of the citizens of Cochin city and Willingdon Island, the ammonia tank has to be shifted. We repeat what the Pollution Control Board has said in their counter-affidavit : "The Board has opinioned that the chances of failure of existing ammonia storage tank though not high cannot be entirely ruled out. The safety measures are not fully adequate to meet the eventuality of the failure of the existing storage tank. The suggestion to remove the storage tank is also made therein by increasing the production of ammonia by the first respondent domestically to avoid import of ammonia from abroad and storing the same in the port area."
(f) We find that the opinion of the fifth respondent -- Ministry of Environment --also points to the necessity of shifting the ammonia tank. They said : "It is submitted that we do not support either the continuation of the ammonia storage tank at the existing site or its shifting to Vallarpadam Island." It has to be noted that though the Ministry has said that it cannot support the continuation of the ammonia storage tank at the existing site, the Ministry has not taken appropriate measures to stop the continuation of the ammonia storage tank at the existing site. It is significant that the Ministry of Environment filed their counter-affidavit on 24th August, 1989.
(g) The task force constituted by the District Collector also expressed the view that the present location of the FACT ammonia storage tank poses a danger to the population at Willingdon Island including the Navy, Cochin Port and Air Port establishment. They said that it should be shifted to a safe location. This report was given on 15-11-1985.
(h) Court appointed Commissioner, Dr. Campbell in his report plainly said that the ammonia tank in the present location poses an additional risk of catastrophic failure on account of the nearness to the Air Port.
(i) After considering the statements given before this Court by the Port Trust, Southern Naval Command, Task Force Committee, Pollution Control Board, Ministry of Environment, the State Government and the District Collector and the report of Dr. Campbell, the Commissioner appointed by this Court, we find that the present location of the ammonia tank is in a most sensitive and strategic place and that location is giving an additional risk factor over and above the risk inherently involved in storing such bulk quantities (10,000 tonnes) of liquid ammonia in a tank on a foundation which according to us is not having that guarantee of safety, which is required for bearing the load of 10,000 tonnes of ammonia -- a toxic and hazardous substance.
(iv) In regard to the rectification of the foundation, after the foundation failure, we have to hold that there is absolutely no justification for the first respondent to choose out of the three alternatives suggested by Mr. Kurt Megar the first solution eliminating the safest solution suggested by him.
(v) We feel that in choosing the most economical and least time consuming solution, for repairing the foundation, in preference to the safest solution suggested by Mr. Kurt Megar, the first respondent and the expert CBRI failed to take into account the disastrous consequences of a possible failure of the foundation.
(vi) Though CBRI has given a clean bill of safety of the foundation for holding the storage tank with a capacity of 10,000 tonnes, since that clean bill has been given without adhering to the hydrolic test of 1.5 times the designed loading capacity of the tank, we hold that we cannot accept the opinion of the expert CBRI. We feel that the said clean bill of safety suffers from irrational conclusions.
(vii) We find it difficult to accept the opinion of CBRI that the first respondent can use the lank for storing 10,000 tonnes of ammonia when the CBRI had designed the repair of the foundation only to permit the foundation to be used for storing 8,000 tonnes of ammonia.
(viii) When the repair design of the foundation was to bear the load of 8,000 tonnes even without a 1.5 times water loading test which was originally designed, the certification that the foundation is strong enough to carry the load of 10,000 tonnes after the completion of the repair is, we feel, irrational and makes the certificate absolutely untrustworthy for this Court to accept.
(ix) We are of the opinion that when the CBRI has given the certificate, they never reflected over the disastrous consequences of the failure of foundation.
(x) The two reports of the I.I.T cannot safely be relied on for holding that the foundation is safe. We feel that the findings in the two reports of the I.I.T. for the reasons, we have already discussed, are quite casual and without keeping in mind the fact that the foundation has to bear the load of a hazardous substance. We here repeat the observation in the report that the foundation is not in an "alarming condition" and that "it may survive say, 10 to 15 years."
191. On the findings and conclusions we have decoded from the mass of materials placed before us, we have to make our own final decision in the matter. We are fully aware of the fact that directing the first respondent to decommission the ammonia tank would certainly involve very far-reaching and serious economic issues as well as issues relating to loss of employment to large number of persons. Certainly these issues involve vital and serious consequences. But we have to balance these issues with the real and intelligible potential possibility of a catastrophic accident to the ammonia tank resulting in extermination of all living beings in Willingdon Island, City of Cochin and nearby places. We have found that the catastrophic failure of the tank is not a remote possibility, but a credible and contingent possibility to be reasonably anticipated on the facts unfolded in the case. We feel that we have to discharge our obligation informed of the fact that the human population of Cochin City and Willingdon Island should not be compelled to remain under the dark shadow of a genocide. Life on earth can never be peaceful if it is shrouded in perpetual anxiety and fear of extermination on account of an avoidable human activity. It is the plain and clear negation of the most basic human right and gross violation of the fundamental right guaranteed under Article 21 of the Constitution of India.
192. A chain of decisions of the Supreme Court call to mind the multilateral and multi-angular savor and flavor, attribute and aroma of right to life recognised in Article 21 of the Constitution of India. We recount only some of the decisions: Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746 : (1981 Cri LJ 306); Stale of Himachal Pradesh v. Umed Ram, AIR 1986 SC 847; Vincent v. Union of India. AIR 1987 SC 990; Vikram Deo Singh Tomar v. State of Bihar, AIR 1988 SC 1782 and Rural Litigation and Entitlement Kendera v. State of U.P., AIR 1988 SC 2187. These decisions illumine the perception and discernment into Article 21 of the Constitution as also the obligation of the Court when it deals with this Article. It has to be remembered that the Supreme Court has repeatedly said that the right to life inheres the quality of life. In M.C. Mehta v. Union of India, AIR 1987 SC 982, the Supreme Court highlighted the imperative of human safety in running hazardous industries using highly advanced technology. Deprivation of life under Article 21 of the Constitution of India comprehends certainly deprivations other than total deprivation. The guarantee to life is certainly more than immunity from annihilation of life. Right to environment is part of the right to life. Apart from the rights under Article 21 of the Constitution of India and its refined articulations in Article 51(g), we have to remember that in 1984, United Nations adopted a resolution, reading : "All human beings have the fundamental right to an environment adequate for their health and well being." A state of perpetual anxiety and fear of extermination of life is not an environment adequate for the health and well being of human race.
193. We hold that the continuation of the operation of the ammonia storage tank by the first respondent is a plain and clear violation of the fundamental right guaranteed under Article 21 of the Constitution of India and so we are obliged to stop it. We are reminded of the case Tennessee Valley Authority v. Hii. n G. Hill, 437 US 153, wherein the Supreme Court of the United States, acted on environmental considerations to prevent extinction of 'snail darter', declared as an 'endangered species' under the Endangerous Species Act. The Court injuncted the Tennessee Valley Authority from constructing of a dam, observing:
"though it may seem curious to some that the survival of a relatively small number of three inch fish among all the countless millions of species extant would require the permanent halting of a dam for which the Congress has expended more than $ 100 Million, we conclude that provisions of the Endangerous Species Act require precisely that result."
Here we hold that the right to life under Article 21 of the Constitution of India requires precisely the decision we have taken in this case.
194. In the result, on an anxious consideration of the rival claims and competing concerns, we order the first respondent to de-commission and empty the ammonia storage tank at Willingdon Island within three months from today. Further we direct that the storage tank at Willingdon Island should not be used for storing liquid ammonia after decommissioning the tank. The first respondent is directed to pay Rs. 5,000/-(Rupces Five Thousand only) to the petitioner as costs of this litigation.
195. Before we part with this judgment, we would like to express our deep sense of appreciation for the learned counsel for the petitioner, learned counsel for the first respondent and other learned counsel appeared in this case for the able assistance given in this case.
196. Counsel for the first respondent submitted that this Court should stay the operation of the judgment we have now passed. We feel that we have given adequate time by granting three months to decommission the tank. In the circumstances, we see no justification to allow the prayer of the first respondent. We decline to do it.
197. Counsel for the first respondent made an oral request for leave to file an appeal before the Supreme Court. He submitted that considering the public importance involved in this case, leave has to be granted. We know that the case involves public importance. Since we have found that the continuation of the tank poses a devastating danger and the catastrophic event can happen at any time, though have granted three months time for decommissioning the tank, we feel that this is not a fit case where leave can be granted. Request for leave declined.